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Trust Law Reform Essay

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  • Essay length: 2083 words
  • Submitted: 28/01/2005
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University Degree Equity & Trust Law

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Trust Law Reform Essay

Current Law

At present much of trust law derives from the common law. Under this a trustee is strictly liable when they act outside the terms of the trust deed or the general law, thus committing an Ultra Vires breach. This is so, even if they have acted honestly and in good faith.

Proposal 1

Questionably this rule is unjustifiably strict. The Commission proposes1 that trustees should cease to be liable for this kind of breach of trust if they have "acted in good faith and taking all reasonable steps and making all reasonable enquires believed that the action was in their powers"2. This proposal aims to simplify the uncertain existing law and offers a greater level of protection to trustees acting honestly and in good faith.

Nevertheless, lowering the standard of legal responsibility may have a detrimental effect on the beneficiaries. The Commission's position is that it is doubtful that it will limit the beneficiaries' right of recovery, apart from in the instance of unauthorised investment, which the commission states is unlikely to happen. Even though it is true that trustees have wide powers of investment, recent

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