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Trustees and their Fiduciary Obligations: The Legal Landscape

Janina White

22 Oct 2023

A trustee, by virtue of the office held, shoulders a weighty responsibility. Central to this responsibility is the cardinal principle that trustees must perform their duties with utmost honesty and in good faith, always prioritizing the benefit of the beneficiaries. The scope of this article seeks to shed light on these fiduciary duties, while also exploring potential breaches and the remedies available to aggrieved parties.

Equitable Proprietary Rights in Testamentary Trusts

In the specific context of testamentary trusts, a distinct scenario unfolds concerning the inception of equitable proprietary rights. Upon the testator's demise, their estate transitions to the executors. Ihis transition bestows upon the executors full ownership of the estate.

The executors, akin to trustees, owe fiduciary duties to the beneficiaries. Their core mandate is to efficaciously administer the estate and give effect to any trusts articulated in the will. Crucially, these obligations are not mere moral commitments; beneficiaries have the legal prerogative to enforce them. A pivotal jurisprudential principle in this realm, as underscored in Commissioner for Stamp Duties v Livingston [1965] AC 694, is that the intended beneficiaries do not attain a proprietary interest in the property until the estate undergoes full administration by the executor.

Breaches of Trust: Scope and Ramifications

Trustees, whether inadvertent or intentional in their actions, may sometimes stray from their prescribed path. Breaches can manifest in various forms, including:

  • Misappropriation of trust property;

  • Displaying a deficiency in care and skill;

  • Acting beyond conferred powers;

  • Neglecting obligations.

A seminal case, Armitage v Nurse [1997] Ch 241, 253 (Millett LJ), stipulates that the nature of the breach—whether it benefits or harms the beneficiaries—is inconsequential to its classification as a breach.

Consequent to establishing a breach, aggrieved beneficiaries have a legal smorgasbord of remedies, namely:

  • Seeking damages;

  • Demanding an account of profits; or

  • Pursuing restitution.

When trustees find themselves ensnared in a decision-making deadlock that poses a potential breach risk—such as an alleged neglect of duty—it becomes viable to contemplate indemnification from a co-trustee or even a beneficiary.

The Protective Umbrella of Indemnification

Trustees, under specified circumstances, may find solace in indemnification by beneficiaries. However, for this to materialize, several criteria must converge: the beneficiaries should not be minors, must possess legal capacity, and must be fully cognizant of any breach nuances. A pertinent legislative provision, S. 62(1) of the Trustee Act 1925, elaborates that if a beneficiary proactively instigates, endorses, or consents in writing to a breach, then the trustee stands indemnified. Consequently, the beneficiary forfeits the right to initiate legal proceedings for that specific breach and must absorb any resultant losses. Notwithstanding, for indemnification to hold, the beneficiary's actions should be devoid of deceit, grounded in factual awareness, and be voluntary. In situations where a trustee surmises that a fellow trustee's (in)actions gravitate towards a breach or trust mismanagement, the onus is on them to act decisively, as emphasized in Re Strahan [1856] 44 ER 402. Failing to do so could spiral into escalated conflicts, potential litigation, and the unfortunate depletion of trust resources.


The role of a trustee is not a light mantle to bear. Testamentary trusts, with their unique characteristics, further compound this complexity. It is imperative for trustees to remain vigilant, uphold their fiduciary obligations, and act in the best interests of the beneficiaries. Simultaneously, beneficiaries must be aware of their rights, potential breaches, and the remedies at their disposal. As the legal landscape stands, it strikes a balance, ensuring both trustees and beneficiaries are adequately protected and served.

Janina is a solicitor registered in England and Wales, and the Republic of Ireland, and a member of the American Bar Association. Her extensive legal expertise spans Corporate Law, Sanctions, and Corporate Governance. Beyond law, Janina is a Chartered Company Secretary and showcases a passion for global cultures, evident in her fluency in eight languages. Advising multinational giants, her unique blend of legal acumen and cultural insight sets her apart, offering readers a rich, global perspective on her subjects. Janina is also a private investigator and a member of the Association of British Investigators and she is actively using the investigative techniques (including the use of the Artificial Intelligence, OSINT and HUMINT)  in her legal work.

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