Trust disputes—asset tracing

The following Private Client practice note provides comprehensive and up to date legal information covering:

  • Trust disputes—asset tracing
  • Common law tracing
  • Tracing in equity
  • Defences

Trust disputes—asset tracing

In some circumstances a beneficiary will want to recover a specific asset. Tracing as a remedy will be the preferred option as the claimant seeks to establish a proprietary right to the asset.

It is important to make the distinction between tracing the asset that was previously owned and tracing a substitute property that now represents that which was previously owned. The most obvious example of this is seeking to establish title to a house that was bought from the proceeds of the sale of a house that was a trust asset.

The claimant's case in the first instance will simply be to prove that the property was theirs but in the second case it will not be so straightforward as is a situation where equity has been employed. Although the term tracing is generally used and will continue to be used here, it is often more explanatory to refer to the former as 'following' and the latter as 'tracing'.

The leading case helpfully explains this thus:

'The process… involves both tracing and following. These are both exercises in locating assets which are or may be taken to represent an asset belonging to the [claimants] and to which they assert ownership. The processes of following and tracing are, however, distinct. Following is the process of following the same asset as it moves from hand to hand.

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