The following Private Client practice note provides comprehensive and up to date legal information covering:
The difference between a duty and a power is:
the performance of a duty is obligatory
powers are to a greater or lesser degree discretionary in nature
The nature of a trustee's duty towards a beneficiary is fiduciary.
The court will not normally compel the exercise of a power against the trustee's wishes but it will compel performance of such powers attached to a trust as are of the nature of a trust or obligation, as stated in McPhail v Doulton:
'Where duty and power are coupled the court can compel the trustees to perform the duty.'
A trustee who fails to carry out their duties will be in breach of trust.
A trustee must enquire as to the trust property, take control of it and thereafter ensure its preservation:
where there is more than one trustee, title to trust property must be vested in the joint names of all of them
if any part of the trust property is outstanding, the trustees must press for payment or the transfer of the property to them. Having collected in all the trust property, the trustees must keep it under their control, separate from their private property and separate from any other property of which they are trustees
in the case of trust property such as chattels, trustees should prepare a detailed list enabling the
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