Pensions analysis: The Deputy Pensions Ombudsman (DPO) in the determination of Mrs W, CAS-60937-P3V3 has rejected a complaint about the trustees decision not to make payment of a lump death benefit to the partner of the deceased member. The DPO found that the scheme had considered all relevant evidence, including the death benefit nomination form which was non-binding, and had determined that Mrs W was not financially dependent on the deceased. Martin Scott of gunnercooke LLP looks at the decision.

General A distinction should be drawn between disclosure by the trustees under trust law, due to the rights of beneficiaries to receive information and ‘non-party’ disclosure by trustees during litigation, whether voluntarily or as a result of a court order. Trustees have a duty to account to beneficiaries, as set out by Millet LJ in Armitage v Nurse, so they must be cooperative in dealing with legitimate requests for information. Exercising their duty of disclosure appropriately is part of the trustees' fiduciary duties. Trustees asked for disclosure should consider whether there is a good reason to refuse. Beneficiaries do not have a proprietary right to inspect trust documents but rather, the right

Law360: Trustees overseeing pension programmes should urgently reassess their cyber-security and fraud defences amid a sharp rise in 'nationally significant' cyber attacks, RSM UK has warned.

Trustees' responsibilities on the termination of a trust On the termination of a trust it is the responsibility of the trustees to: • determine whether the trust has come to an end • determine

Restructuring & Insolvency analysis: This case clarifies that trustees in bankruptcy (trustees) have standing to apply for annulment under section 282 of the Insolvency Act 1986 (IA 1986), as Parliament has not excluded any category of applicant. The court determined that trustees, as officers of the court, have a legitimate interest in seeking annulment when unable to fulfil their statutory functions. The case also addressed cross-border insolvency issues, particularly regarding centre of main interests (COMI) and jurisdictional requirements post-Brexit. The court emphasised the importance of properly pleading all grounds in application notices rather than introducing new arguments in skeleton arguments. Significantly, while finding the bankrupt's COMI was in Austria, the court allowed the trustees to challenge domicile grounds following proper notice, demonstrating the court's procedural fairness in ensuring parties have adequate opportunity to address all issues. Practical implications written by Laura Newbery, associate, Addleshaw Goddard LLP.

Original trustees Trustees will usually be appointed by the instrument that brings the trust into existence. The trust instrument should also make provision for any additional appointments that may be necessary during the continuance of the trust. The Trustee Act 1925 (TA 1925) makes provision for any additional appointments that may be necessary but it may be expressly excluded. The settlor will usually name those who they wish to act as trustees and when the settlement is made in the settlor’s lifetime the trustees will normally be parties to the trust deed. Where the settlor simply declares an intention to hold some of their property on trust going forwards, they will themselves be the sole trustee. Alternatively, they may decide to appoint other trustees as well and take steps to vest the property in themselves and their co-trustees jointly. Where trusts are created by Will, it is usual (but not obligatory) to appoint the same persons to be both executors and trustees. The fiduciary duties of executors are very similar to those of trustees but they are

Nature of duties 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. Trust property The common law duty 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

What is ESG Environmental, social and corporate governance (ESG) encompasses standards that socially conscious investors can use to assess the impact of potential investments on the world: • the environmental aspect considers the company’s stewardship of nature • the social aspect considers the company’s relationships with its employees, suppliers, customers and all those with whom it relates • the corporate governance aspect looks at the company’s leadership, internal controls and shareholder rights ESG is an umbrella term for a range of ethical investments. The standards and criteria used to assess ESG investments will vary in this evolving area. Due to all the hype around ESG investments there have been accusations of ‘greenwashing’ in the ESG market in respect of some investments—a deceptive practice whereby a company’s marketing overamplifies the ESG credentials of an investment. This can lead to significant loss in value of the investment due to the impact on the company’s reputation. Why might trustees choose ESG investments Trustees may choose ESG investments for a range of reasons including: • financial reasons

General Principles Where a person has a property or rights which he holds or is bound to exercise for or on behalf of another, he is said to hold the property or rights on trust for that other. He is known as a 'trustee' who holds the property or rights on trust for the 'beneficiary'. Trusts can be distinguished as express, implied, constructive and resulting. An express trust is created by the terms of a declaration, other trust instrument or by will. Implied trusts may be express trusts where the intention of the testator or settlor is implied in the non-technical language they have used or where the trust arises by operation of law. A constructive trust arises where

Nature of powers A trustee's powers may be either: • administrative, ie powers relating to prudent management in the discharge of the trustee's duty to maintain the trust estate • dispositive, ie powers intended to have an actual effect on the benefits that the beneficiaries become entitled to receive (often referred to as ‘distributive powers’) Powers may be purely discretionary (as in the case of mere powers of appointment found in fixed or discretionary trusts) or they may be of the nature of a trust or obligation (as in the case of trust powers in discretionary trusts). A trustee must consider whether or not to exercise a purely discretionary power, but they will not be compelled to exercise it, even though its non-exercise may benefit one beneficiary at the expense of another. Where a power is of the nature of a trust or obligation its exercise is compellable, but the court will not override the trustee’s discretion as to the time and manner of its exercise. The distinction, though, may not always be easy to

General law The original trust fund For a trust to be effective it needs property to be subject to the trusts. When a trust is created the initial trust fund may consist of cash or assets or a combination of the two. Once the assets are in, the trustee has a duty to protect the trust assets, this is a continuing duty that begins with the collection of assets on assuming office and ends with the final distribution of property among those entitled to it. From the outset the trustees must acquaint themselves with the terms of the trust and the state of the property they are to hold, ensure that funds are appropriately invested and see that all securities and chattels are in proper custody. The trustees must decide whether they are permitted to keep the initial trust fund as it is and if so, whether in fact they should do so. Most lifetime trusts drafted by professionals will ensure that they give the trustees the widest possible powers of investment and enable them to keep any assets transferred

The trustees are under a duty to manage the trust fund as to both income and capital until the beneficiary reaches the vesting age. Note that on 27 February 2023 the Marriage and Civil Partnership (Minimum Age) Act 2022 came into force meaning that on or after this date it is not possible for a person to marry or enter into a civil partnership under the age of 18 in England and Wales. See News Analysis: Marriage and Civil Partnership (Minimum Age) Act 2022—implications for trusts. Statutory power or express power A power of advancement may be either statutory, under section 32 of the Trustee Act 1925 (TA 1925) or express through provision in the trust instrument. It is a fiduciary and dispositive power, allowing a trustee to bring forward (advance) a beneficiary’s entitlement under the trust. TA 1925, s 32 will be implied into every trust, subject to being excluded by contrary intention and subject to some limited exclusions. The statutory power used to provide that: ‘Trustees may at any time or times pay or apply any capital