A trust is a concept whereby property, the subject matter of the trust, is transferred from one person the settlor to another, the trustee to hold for a specified list or class of persons, the beneficiaries…
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Trustees, having legal title to the property can exercise control over the property via the powers and rights bestowed on them by the settlor, who himself may be a beneficiary or trustee. These rights and powers arise from their office; they are to be exercised in their capacity as trustee and in the interest of beneficiaries who have beneficial ownership. With this beneficial title comes in equity, rights in respect of the trust rights themselves although not direct rights to possession of the trust property, (Law Commission 2011, P.227).These rights vary with the kind of trust created. The separation of ownership is one of the defining features of trusts .These powers pertain particularly in the trustee’s duty to invest the trust funds, duty to keep trust accounts and a duty to distribute trust assets according to the specifications of the trust. For breach of his duties, a trustee is liable for breach of trust for which the beneficiaries can sue for a money judgement. Beneficiaries have a right to due performance of the trust and to be considered. Powers of Investment The duty of investment has two major components: a duty to invest trust fund so as to be fair or even-handed between the different beneficiaries classes and a duty to invest the trust rights in such a manner as to protect them risk but also ensure reasonable returns.What amounts to investment is a matter of case law. In Re Powers, the court rejected the purchase of a house as residence for the beneficiaries as an investment because there would be no receipt of income from this. As pertains to even-handedness, the benefit of trust property is often divided into income and capital beneficiaries and it accrues as rent, dividends and so on. The guiding principle being that the character of an expense or receipt determines who bears it, hence capita for capital beneficiaries and expenses of an income nature are borne by income beneficiaries, (Penner 2008, P.275). Where such divisions cannot be made, for example where all investment is income as in cases of wasting assets or where the investment doesn’t generate any income a trustee may favour a capital over an income beneficiary or vice-versa. Courts thus impose a duty of fairness requiring the trustee to equally weigh the capital in the making of his investment decisions. As demonstrable by the New Zealand case, Re Mulligan (1998), the duty to invest is a fiduciary one and only by being even-handed can he be said to have acted in the best interests of all beneficiaries. In the case the trustee investment choice maximised the income of the life tenant but there was little capital left in the fund on her death. Interestingly, Cowan v Scargill (1985) Megarry V-C held that trustees’ refusal of an investment plan amounted to a breach in trust. The standard of prudence required is subject to reasonableness, a trustee isn’t expected to overcome the market or save the fund from declining economic woes. The higher the risk of an investment the higher the returns to it. Historically, courts favoured safer options and until recently confined trustees to fixed interest government securities despite the broadness of investment clauses as designed by the settlor of the estate. Once interpreted restrictively, investment clauses are now given their plain meaning, Re Harari’s Settlement Trust, (1949). The Trustee Act gives the legal investment in the absence of clear instructions on the settlor’s part. The law gives a trustee limited powers to delegate investment-making decisions as is the power to appoint
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