Trust disputes—defences to breach of trust
Trust disputes—defences to breach of trust

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

  • Trust disputes—defences to breach of trust
  • Consent by beneficiaries
  • Court order
  • Release/acquiescence
  • Limitation
  • Laches

The most simple defence that a trustee can raise to a claim for a breach of trust is that the claim itself has no merit, eg that there had been no breach or that there was a breach but no loss resulted. Also, the claimant may be entirely unable to prove a link between the alleged breach and loss.

Apart from these obvious situations, there are a number of other defences.

Consent by beneficiaries

It is perhaps self-evident that a beneficiary who consents to or participates in a breach is unlikely to succeed in a claim even if they derive no benefit from the breach. Having said that, there is no reason why a corporation cannot claim against a fraudulent and illegal use of its powers by some of its members (for instance, in a pension trust situation) to deprive it of property to which it was entitled.

If there are a number of beneficiaries, those who were not involved in the consent will still be able to bring a claim.

If such a claim is successful, the beneficiary who gave consent will not be permitted to benefit from that claim.

In order to raise this defence, a trustee must be able to point to the consent from a beneficiary of full age and competence and one who is not being compelled to give that consent. Only then can the

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