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Equity & Trusts - Powers and Duties of Trustees

Whereas a duty must be exercised by a trustee, a power is something that can be exercised by the trustee. In any case the trustee is afforded discretion and so according to Pitt v Holt [2013] they must simply act: *in good faith *responsibly *reasonably *based on the facts (e.g. type of trust) *often on the advice of experts (e.g. accountants, lawyers etc.) Trustees do not have to give reasons for their decisions (Re Beloved Wilkes’ Charity (1851)) and the court will only interfere when the trustee acts in bad faith (Klug v Klug [1918]). This comes up when the trustee acts on bad advice where under the new case law of Pitt v Holt [2013] it actually makes it much harder for such mistakes to be rectified. Duties of the trustee include: *providing information (Re Londonderry’s Settlement [1965]) *exacting impartially between beneficiaries (Howe v Earl of Dartmouth (1802)) *exercising a duty of care as per the Trustee Act 200 in relation to actions such as investments, insurance, purchasing land, reversion, appointments etc. Meanwhile the available powers include maintenance and advancement under ss. 31 and 32 of the Trustee Act 1925 respectively. Other powers are the purchasing of land as well as a limited power of delegation. An important point to note is that the trust instrument itself can exclude a great deal of liability relating to loss and damage (Armitage v Nurse [1998]) which is a major advantage for trustees. However liability cannot be excluded for fraud.