EQUITY AND TRUSTS 2.4 TRUSTEES
Appointment, retirement and removal here does not apply to resulting and constructive trustees as they come in by operation of the law. This Section is in relation to express trustees. The Trustee Act 1893, Trustee Law and Public Trustee Act shall be instructive to this effect.
- Any person of full age and capacity may be appointed as trustee. By the court and testator. A minor can however be a trustee of resulting and constructive trust-Re Vinogradoff
- A trust corporation and Public trustee can be appointed Section 9 PTA. The maximum number appears to be 4 as provided by Section 22 TL in the case of trust for sale the minimum may be one, but for transparency sake, two is advised. Moreover, Section 6 TL mandates at least two trustees (except where it is a trust corporation) for land transaction.
Appointment of Trustees.
- By the settlor/testator. These are referred to as original trustees. If all the trustees disclaim or have died, then the settlor or the personal representative of the last surviving trustee would act as equity never wants for a trustee. A person nominated to appoint new trustees can do so.
- Section 10 TA and Section 24 TL provide for the appointment of new trustees where:
- A trustee is dead.
- Where trustee disclaims or retires.
- Trustee is incapable of acting maybe for infancy (Section 24 TL) or insanity.
- Where the trustee is unfit to act: maybe being a bankrupt or wound up corporation.
- Where the trustee remains outside Nigeria for more than 12 uninterrupted months. In Re walker one week’s return broke the chain.
- Section 24(6) TL also provides that new trustees can be appointed provided non of the existing trustees is a trust corporation and such appointment does not bring the number above 4. Appointment must serve the interest of the beneficiaries and the intention of the settlor.
- Section 25 TA and Section 28 TL empowers the court to appoint new trustees in expedient deserving situations (where the above situations are impossible) whether as an addition or replacement. No jurisdiction where person(s) nominated to appoint objects-Re Higginbuttom. In Olowu V Renner, the plaintiff sued to be reappointed as a new trustee. The court noted that reappointed trustee is not the same as new trustee. Also, the court may appoint a public trustee on the application of beneficiary or trustee-Section 8 and 9 PTA.
After appointment, there must be the vesting of property on the trustee. This may be by:
- The settlor properly transferring property to him/them. For land, conveyance is needed. Where testamentary, the Will itself operates to vest the property.
- In the case of new trustees:
- Section 12 TA and 27 TL (vesting declaration by the appointor contained in the deed of appointment)-Nylander V Thomas.
- Vesting order by the court.
- Conveyance/transfer from original trustees to new trustees.
DETERMINATION OF TRUSTEESHIP.
- Disclaimer: The person appointed may disclaim/reject the trust any time before accepting the trust. A deed can be executed to this effect. There can be no disclaimer for resulting or constructive trust. Once he accepts the trust, he can only retire-Holder V Holder, the court noted that since the trustee had already acted as executor, he could not disclaim.
- Retirement: where he decides to quit after acceptance, he may retire.
- A new trustee may be appointed in his place (by the authorized person or the court) under Section 10 TA and Section 24 TL… except more than 2 trustees would remain or a trust corporation-Section 11 TA and 26TL.
- By the consent of the beneficiaries or under a power contained in the trust instrument.
- Removal by the court: Section 25TA and 28TL empowers the court to remove a trustee with or without a replacement especially where there is friction (not mere strained relationship-Williams V Bankole) between the trustee and beneficiaries and in other deserving situations. In Adeseye V Williams, the court also noted that a trustee may be removed where his continuance in office is prejudicial to the performance of the trust or he has disregarded his responsibilities.
What amounts to acceptance? Acceptance may be express, implied or by conduct depending on the facts and circumstances of the case. E.g. interference with trust property. It has also been noted in Mucklow V Fuller that where a person is appointed both executor and trustee, he is deemed to have accepted to be a trustee if he takes out/accepts probate of the will. Rejection of probate on the other hand may be strong evidence for disclaimer of trust-Nylander V Thomas.
DUTIES OF A TRUSTEE.
Onerous and an act of great kindness in anyone to accept it-Lord Hardwicke in Knight V Earl of Plymouth.
- The duty/standard of care: case law has noted that it varies based on the following considerations:
- Whether he is exercising a duty or discretion- The former requires utmost diligence in the latter, as a prudent man of business would. The trustee’s exercise of discretion should not be challenged except he has not exercised in good faith.
- Whether he is paid or unpaid-The standard of diligence and skill is higher for a paid trustee-Harman J in Re Waterman’s Trust.
- Duty to strictly observe the terms of the trust: generally, the court cannot order a departure from the terms of the trust as was noted in Re Walker, Walker and Duncombe. However, the court may authorise a departure where emergency arises in the management of the property and it is expedient for the trust but trustees have no power in the trust instrument to effect it. See Section 40 TL. This was done in Re New. Also authorised in Re Jackson to effect repairs. There is however no power to vary the beneficial interests as was noted in Chapman V Chapman. In Re New, court held that the court could alter the investment power to meet unforeseen situations. As it is impossible for the settlor to see all that might happen. In Balogun V Balogun, the court noted that custom may be allowed to override the strict rule provided that they are not repugnant to natural justice, equity and good conscience and not contrary to an existing law as provided by Section 20 by the Supreme Court ordinance.
- Duty to reduce trust property into possession: meaning that the trustee is meant to gather all trust property… like enforcing choses in action, monitor debtors to the trust, exercise option to purchase reversion. Where there are two or more trustees, the trust properties must be placed in their joint control. Laxity may make the nonchalant trustee also liable.
- Duty to invest: the trust property in investments authorized by the trust document or law-Trustees of the British Museum V AG. The specification by trust document should be followed-Re Harari’s Settlement. The Trustee Investments Act 1927 contains a list of authorized investments. The Trustee Investment Act of 2000 enables the trustee to invest in any kind of investment provided such power is exercised with care. They must invest in viable endeavours, seek expert advice where necessary and act in good faith-Armitage V He may not be liable for loss where all was done reasonably and honestly-Re Chapman. In Nestle V National Westminster Bank, the beneficiary complained that the investment did not bring as much profit as she expected. The courts held that she must prove that the trustees had caused a loss to the trust. In Head V Gould, the courts noted that that the beneficiaries can generally recover from one or all of the trustees. Else he should restore the trust property to what it would have been but for the default.
- Duty to convert: in the absence of an intention to the contrary in the trust property. Where a residuary personalty consists of wasting asset and the beneficiary for life would enjoy it and the remainderman would have nothing. The trustees in such situations would have to sell the property and invest it in an authorized investment-The Rule in Howe V Lord Dartmouth.
- Duty to keep accounts and provide information and access for beneficiaries to access and inspect account and trust documents.
- Duty not to make profits: like other fiduciaries, the trustee is not entitled to make profit either directly or indirectly… except the instrument provides to the contrary. His interest should not conflict with his duties.
In Keech V Sandford, a trustee who obtained a renewal of lease in his own name was held to hold on constructive trust for the beneficiaries. Where trust shares gave trustee higher voting rights to be appointed as director, he should account to the trust property for fees obtained as director. Except they were appointed directors independently of their votes as was seen in Re Gee.
In the event of speculation with trust property, the trustee shall bear the loss and the beneficiaries enjoy the profit-Docker V Somes
Generally, a trustee cannot buy trust property except sale has been completed and there was no prior agreement that the trustee would repurchase and there has been no fraud like, sale at ridiculously low price. A trustee can purchase beneficiary’s interest provided it is in good faith and in the absence of fraud, duress or undue influence.
In Bishi V Ipaye, the trustees purchased land for the trust estate with the trust money but it turned out that to have a defective title. After refunding to the trust as required, they sold the property at a profit. The beneficiaries were prevented from suing for the profit as they could not eat their cake and have it.
He should generally not charge for his services except:
- Such charging clause is contained in the trust instrument.
- Section 19 PTA empowers the Public Trustee to be paid… he shall charge such fees as may be fixed by the government.
- A trustee is entitled to be reimbursed from the trust estate for his out-of-pocket expenses-Section 24 TA.
- The court may order that the trustee be paid in exceptional circumstances-Phipps V Boardman. Section 29 TL provides that the court may make an order for the payment of a trust corporation.
- In the absence of undue influence, sui generis beneficiaries may agree to pay the trustee.
- By Craddock V Piper: – A solicitor trustee may charge where he had handled a case on behalf of his co trustees and himself, – Where he has employed a partner to handle the case (provided no prior arrangement for his share)-Clack V Carlon. – where he employed his firm to act as solicitors, he is not entitled to charge except there is a provision to the contrary in the trust instrument-Re Gates.
- Duty to distribute: According to the terms of the trust instrument. The trustee would be personally liable for wrong distribution-Re Diplock. In Eaves V Hickson, this was the position notwithstanding that the trustee was misled by forged document. The beneficiary can trace and recover his entitlement. Except it has come into the hands of a bonafide purchaser for value without notice. The court may however relieve the trustee of liability where the erroneous distribution was done honestly and in good faith-Section 3 Judicial Trustee Act and Section 44 TL. In time of confusion, the trustees can apply to the court for direction. Also, where not all the beneficiaries have been ascertained, the trustee may apply for a Benjamin order to distribute to the available beneficiaries-Re Benjamin. Where the beneficiary resurfaces, he would trace the property rather than sue the trustee.
POWERS OF TRUSTEE.
The court would hesitate to interfere with the trustee’s discretion… especially where it is honest and fair.
- Power of sale: must obtain the best price. There should be no collusion between the trustee and purchaser. Where it is trust for sale, it is a duty to sell and the decision to postpone sale must be unanimous. Section 6 TL requires that they be at least two to issue receipt for the sale of land except it is a trust corporation.
- Power to insure: By Section 18 TA, the trustees have the power to insure. Where loss occurs and money is received under the policy, it would be regarded as capital money to be invested.
- Power to compound liabilities: Section 27 TL to pay or allow any debt, compound, abandon settle debts or claim relating to the trust. In such situation, he shall not be liable provided he acted in good faith and exercised his discretion properly.
- Power to Delegate: Although the general rule is delegatus potest non delegare, trustees may employ professionals to act as agents in matters requiring special skill provided he exercised due diligence and care in appointing and such appointment was in accordance with ordinary business practice-Section .
- Power to appoint delegate his powers by appointing by power of attorney, when he is going outside Nigeria for a period exceeding one month-Section 16(2).
- Power to pay money into the court as a last resort in cases of serious difficulty-Section 42 TA-Re Gillingham Bus Disaster Fund.
- Power to advertise for claimants: where he is about to distribute estate. Such advertisement in state Gazette and a well circulating newspaper stating the date for distribution.
CONTROL BY THE BENEFICIARIES AND COURT.
By Beneficiaries: The Trustees generally are not under an obligation to accede to the wishes of the beneficiaries. The beneficiaries have no right to automatic information-Re Murphy’s Settlements. Sui juris beneficiaries who are absolutely entitled may unanimously put the trust to an end and compel the trustees to hand over-Saunders V Vautier. This was done in Re Smith.
By the court: generally, the court would not interfere with trustees’ absolute discretion so long as it is exercised in good faith. This is facilitated by the Unanimity rule. Simply put, where the exercise of a discretion is in question, the minority dissent prevails. If the exercise of a duty is in question, the minority assent prevails. Thus, each decision needs unanimity. Thus they must be unanimous in exercising discretion and unanimous in deciding not to perform a duty. Generally the court does not have the power to authorize a departure from the terms of the trust (as was noted by Farewell J in Re Walker). Except in deserving emergencies needed to salvage trust property-Re New–Section 40TL. This was the case in Re Jackson carrying out essential repairs was allowed. But the court cannot sanction an alteration/variation of the beneficial interest as was noted in Jackson V Jackson.
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