Probate and Administration Act 1898 NSW s 86 o Trustee cannot lend themselves

Probate and administration act 1898 nsw s 86 o

This preview shows page 15 - 17 out of 22 pages.

Probate and Administration Act 1898 (NSW) s 86 o Trustee cannot lend themselves money, even if powers under Trust are wide; Wickstead v Browne (1992) 30 NSWLR 1 o Trustee cannot sell trust property to themselves either ; Farrar v Farrars Ltd 1880 o Essentially they cannot partake in any activity that might cause concious and positive wrongdoing (including technical wrongs even if they acted in good faith ); Holder v Holder [1968] Ch 353 g) Duty to keep accounts and supply information ‘Whilst the defendant… has a fiduciary obligation to the plaintiff to provide information as to the amount of the trust property and its investments….the extent of that obligation is affected by the circumstances of the relationship including the terms of the contract between them (the Trust deed); Schmidt v Rosewood Trust 2003 UKPC 26 o Trustee must keep full/proper accounts of trust property ; Kemp v Burn (1863) o Failure to render accounts when requested will make them liable to the cost of any proceedings brought to obtain any account; ibid o In complying with this duty, Trustee can employ professional accountants; Clark v Inglis (2010) 5 ASTLR 570 o Trustee must provide beneficiaries with full details of investments including evidence verifying the investments + full information about other trust property ; Randall v Lubrano (2009) 72 NSWLR 621 Incl details of legal advice obtained to administer Trust; Hawkesley v May o Trustees do not have to give beneficiaries access to their working papers; Re Fairbairn o Beneficiaries’ rights are restricted to inspection of books/ records – do not have access to all records + cannot request Trustee’s reasons for exercising discretions ibid h) Duty to act personally o Trustee must act personally (and unanimously if more than 1 trustee); Luke v South Kensington Hotel (UNLESS trust allows majority decisions; Dulhunty [2010]) o If 2+ trustees cannot agree, court can intervene; Re Estate of William Just (No 1) 1973 o Trustee cannot delegate powers unless specifically permitted by Trust Deed/Statute OR it is a matter of necessity to employ an agent; ibid o Power to delegate allows Trustee to delegate power to receive + hold moneys to a bank; Trustee Act 1925 (NSW) s 53 i) Duty to consider o Trustee has duty to consider how best to exercise their powers and whether to exercise them at all o They can seek the approval of the court but will end up surrendering their discretion by doing so; Marley v Mutual Security Merchant Bank [1991] 3 All ER 198 o If Trustee has obligation to exercise a power, court can compel them o If the power is a mere power the Trustee must consider whether to exercise it at all BUT this does not relieve the Trustee from duty to consider; Re Hay’s Settlement 1982 o Trustee is not obliged to disclose reasons for exercising discretion
Image of page 15
o When exercising a power of appointment they must act with good faith and sincerity and not to effect any sinister purpose; Duke of Portland v Lady Tophan Any attempt to secure a benefit for themselves or someone else and not an object of the power will breach this rule;
Image of page 16
Image of page 17

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture