It is fundamental to the nature of a trust that a trustee acts in accordance with certain duties and powers conferred on them either expressly by the trust instrument or implied by the statute, so as to properly facilitate the administration of these trusts. , For the purposes of this question Peter is a trustee and must conform to these powers and duties.
As a trustee Peter must exercise such care and skill as is reasonable in circumstances1 (, Peter should be advised that his duty of care applies to all his extensive range of powers and any breach of this would enable the trust accounts to be surcharged with the income or capital that would have been trust income or capital but for his Peter”s breach of the equitable duty of care in acting within the powers conferred by statute or the trust instrument. Peter should be advised that his role as a trustee is to act as custodians of the capital value of the trust fund, whether represented by money, land or other property.
These goals are achieved by granting the trustees a power, now usually a duty of investment. that he could make as if he were absolutely entitled to the assets of the trust. While managing and administering this trust Peter should be advised that he is bound to exercise a standard of care while exercising his power in relation to investment, in other words as stated by Lord Lindley in Re Whiteley2 he must have acted as an ordinary man of business would act if he were minded to make investments on behalf of people.
As There are no express powers of investment in this case and therefore the power of investment is governed by the Trustees Act 2000 . This statutory power is subject to the statutory duty of care3 which implies that Peter has to exercise such care and skills as is reasonable in the circumstances having regard to the ‘standard investment criteria'(S4) ensuring that trustees have regard to the suitability of the investment and its suitability in the overall profile of the trust and a need for diversification(s4(3)a and b, While exercising his power of investment Peter must have obtained or considered advice (s5).
Proper advice is defined as ‘the advice of a person who is reasonably believed by the trustee to be qualified to give it by his ability in and practical experience of financial matters relating to the proposed investment(s5(4). As regards the family trusts of Chris, James and Sally Although there is no indication whether Peter has invested the fund he should be advised that if he omitted to invest the i?? 250,000 or failed to invest the money within a reasonable time he will be charged interest4. In Cann v Cann5 Kay J considered that six months was the maximum period.
While dealing with Tabitha’s trust fund which amounts to i?? 50,000 precisely the same principles will apply if he failed to invest within a reasonable time or did not invest the money at all. Having for the purpose of exercising his duty of investment as a trustee, Peter has all the powers of an absolute owner in relation to trust land6 and thus was within the ambit of his duty to invest while granting the lease on Molineux Cottage7 however he must have exercised this duty in accordance with the statutory provisions under the Trustee Act 2000 i.
e he must have taken proper steps by consulting a practical valuer to ascertain the proper rent. if he omitted to exercise diligence, this can amount to a breach of trust and he would be automatically liable for the loss of value of the Cottage. Although he may try to plead s61 Trustees Act 1925, on the grounds that he should be excused liability because he has acted honestly or fairly.
