The General Principles of Trusteeship

caronlthatcher
Flashcards by caronlthatcher, updated more than 1 year ago
caronlthatcher
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These flash cards explore some of the core principles of trusteeship

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Question Answer
Who can be a Trustee? Anyone with the capacity to hold property i.e. aged 18 or over, with a sound mind and also Corporations Be aware: A minor can be a trustee under an implied, resulting or constructive
How are Trustees appointed? Usually by the Settlor or Testator in the Trust Instrument or Will
What if a person doesn't want to be a Trustee? They must disclaim (refuse) to act in the Trust. This must be done by Deed But Note: Re: Lord and Fullerton's Contract (1896) If the trustee accepts managing part of the trust then they are deemed to have accepted the whole of it.
Can new Trustees be appointed? Yes - New Trustees can be appointed using the provisions of S.36(1) Trustee Act 1925
S.36(1) TA 1925 A new trustee can replace a current trustee who is: Dead, remains outside of the UK for a continuous period of 12 months, wishes to be discharged, refuses to act, is incapable of acting, is an infant. New appointments must be in writing
Removal by the Court The court has an inherent jurisdiction under S.41 TA 1925 to remove a trustee. Circumstances in which a trustee might be removed would include where a trustee had engaged in some dishonesty
Are trustees paid? Trustees are not entitled to payment for their work unless it is authorised via the Trust Instrument, statute or by equity. BUT the court has an inherent jurisdiction to authorise payment - See: Re: Duke of Norfolk's Settlement Trust (1982)
Payments A Trust Instrument will usually have a Charging Clause inserted in to it so that trustees can be paid but the Trustee Act 2000 S.29 also provides that A trust corporation is entitled to reasonable remuneration for services they provide to the trust Professional trustees can also claim remuneration if the other trustees agree in writing
What is a lay trustee? A lay trustee is a non- professional, usually a family member or a friend,who, through moral obligation, helps to run the trust or to complete probate on the trust. A lay trustee may have no legal knowledge but can use the services of a solicitor to help manage the trust
Lay Trustees v Professional Trustees The role of trustees has become increasingly professionalised over the last century. The growth of large (pension and other) trusts worth billions of pounds, has seen the role of lay trustees dwindle
European Directive Article 9, 2003/41 on Trusteeship The European Court has passed a new directive Each member state in every institution must ensure that the institution is run by persons of good repute who has professional qualifications and experience or employ people with appropriate qualifications and experience
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