34:
622:. The 1961 Act was repeatedly criticised for its "very conservative investment policy for trustees". The powers of investment trustees were given were restrictive and narrow, and at the same time the trustees were expected to go through expensive and complicated procedures to exercise them. This new power of investment is treated as a default provision - it is overridden if the trust instrument itself restricts the ways trust money can be invested. If the trust instrument was created prior to 3 August 1961, however, its provisions regarding investments are treated as void. The new provisions apply retrospectively, i.e. to trusts created before the passage of the Act. They do not, however, apply to trusts governed by the
720:. Section 28 states the default position is that trustees are entitled to remuneration if it says so in the trust instrument or if a trustee acts in a "professional capacity". A trust can differ from this default, but the Act confirms the recent developments in the common law from the old default position that trustees were entitled to nothing unless it was explicitly stated that they were. Section 29 goes on to say that non-charitable professional trustees are entitled to "reasonable remuneration" which will be a sum that the court thinks is commensurate with the work done, along the principles of
609:
care creates problems, because it sets a fixed, objective point. It is not known where this point is, however - a professional trustee obviously cannot be held to the standards of a lay trustee, but it has been seen as equally unfair that a lay trustee would be held to the standards of a professional one. This duty, unlike the previous common law duty, at no point requires the trustee to act. The duty of care has been seen to be advantageous to charities compared to the old one, because it allows those charities forced to employ lay trustees to use professional agents to exercise some duties.
708:
on trustees who delegate their powers, with the duty consisting of three elements. Firstly, trustees are required to make sure that agent is suitable for the job he is employed to do. Secondly, they are required to consider whether or not to intervene in the appointment if circumstances demand it. Thirdly, trustees are required to intervene after appointment if the circumstances demand it. Section 23 establishes trustees' liability for the actions of agents; a trustee is liable for negligence if he violates the general duty of care set out in
Section 1, but not otherwise.
726:. This is automatic if the trustee is a corporation, but will require consent of all other trustees if the trustees are natural persons. Section 30 stipulates that rules on charitable trustee remuneration are to be found in a statutory instrument drawn up by the Secretary of State. Trustees will be reimbursed from the trust fund itself, as will be authorised agents, nominees and custodians who are properly appointed by the trustees all so long as the expenses and payable remuneration are incurred while conducting the affairs of the trust.
572:. It indicates that a professional trustee would be held to a higher standard than a family trustee. The subjective element requires a court to exercise greater scrutiny if a trustee had any special skills, which takes the trustee's ability above the objective baseline. So if a trustee had a special accountancy qualification that trustee would be expected to exercise a greater than normal degree of care over the trust's accounts.
664:
his ability in and practical experience of financial and other matters relating to the proposed investment". This is an objective test, and as with much of
Section 4, is almost identical to the test laid out in the 1961 Act. The advice must be sought before the exercise of any investment power, and is also required if the trustee wishes to change where and how the trust is invested.
1277:, "if allowed, the trust estate might be loaded, and rendered of little value, Besides, the great difficulty there might be in settling the quantum of such allowance, especially as one man's time may be more valuable than that of another; and there can be no hardship in this respect upon any trustee, who may choose whether he will accept the trust, or not."
704:
dispose of trust assets, allocating fees or other payments, appointing a trustee or further delegating duties. Section 15 requires that, where an administrative function is delegated, special conditions must be satisfied. Section 15(1) makes it mandatory to write and sign a policy agreement, which lays out guidance on how a function should be undertaken.
952:
1077:
2 Ch 58, asked whether real estate could be acquired, Lawrence J suggested that acquiring assets such as antiques or gold which yield no income are not investments that trustees may acquire. The
Explanatory Notes to TA 2000, para 22 suggests otherwise, and notes that trust instruments can deviate in
663:
Under
Section 5, trustees are required to obtain "proper advice" before investing, unless the circumstances mean that it is inappropriate or unnecessary to do so. "Proper advice" is defined in Section 5(4) as "advice of a person who is reasonably believed by the trustee to be qualified to give it by
637:
Section 4 of the Act requires trustees to look at the "standard investment criteria" when investing. These criteria are defined in
Section 4(3) as the need to check the suitability of investments for the trust, and the importance of diversification. Section 4(2) requires that, having exercised their
608:
said that "as a general rule a trustee sufficiently discharges his duty if he takes in managing trust affairs all those precautions which an ordinary prudent man of business would take in managing similar affairs of his own", similar to an objective test. It has been pointed out that the new duty of
707:
Sections 21–23 cover the review of agents and the liability of trustees for agents actions. Section 21 identifies that review and liability occurs when the trustees appoints agents, nominees and custodians under the Act or under similar provisions in the trust instrument. Section 22 provides a duty
680:
Under
Section 8 of the Act, trustees can purchase land "as an investment, for occupation by the beneficiaries or for any other reason". Once this land has been purchased they are free to do with it what they could if they were the absolute owner; they can sell it, lease it or mortgage it. This is a
681:
default provision, and can be made irrelevant if the trust instrument contains other rules and requirements. This land may only be bought in
Britain; if trustees wish to purchase land outside Britain, they must either invest in companies which own land or alter the trust instrument to allow it.
531:
The Act is divided into six parts, forty-three sections and four schedules, and focuses upon five specific areas of law. These are the duty of care imposed upon trustees, trustees' power of investment, the power to appoint nominees and agents, the power to acquire land, and the power to receive
703:
Sections 11–20 of the 2000 Act cover the appointment of agents. Section 11(1) allows for trustees " authorise any person to exercise any or all of their delegable functions as their agent", with
Section 11(2) defining "delegable functions" as any function other than the powers to distribute or
617:
Investment powers and limits on those powers are set out in Part II of the Act. Section 3(1) states that "subject to the provisions of this part, a trustee may make any kind of investment that he could make if he was absolutely entitled to the assets of the trust". This is far looser than the
191:
The Act covers five areas of trust law: the duty of care imposed upon trustees, trustees' power of investment, the power to appoint nominees and agents, the power to acquire land, and the power to receive remuneration for work done as a trustee. It sets a new duty of care, both objective and
672:
Rules on the acquisition of land are covered in Part III of the Act. Until the passage of the Act, trustees had no right to purchase land with trust money, with two exceptions; first, if the trust instrument authorised or required the trustee to purchase land and second, Section 6(4) of the
653:, wanted the mineworkers' pensions to be reinvested in the British Coal industry and keep jobs, the court held that because this would make less money than other investments it would be a breach of trust. Subsequent case law has qualified this controversial principle, such as
648:
Ch 270 Megarry VC suggested that trustees have an overriding duty to invest solely in the financial interests of beneficiaries, unless the trust instrument laid down otherwise. So even though the
National Union of Mineworkers' leader,
689:
Part IV of the act covers the delegation of powers to agents, and the trustees liability for their acts. This is an area that has long been criticised by practitioners and academics, particularly the provisions of the
659:
1 WLR 1241, and it is a point of ongoing debate. It is assumed by academics that, if a trust suffered a loss as a result of a trustee investing in unsuitable areas, the trustee would be liable for breach of trust.
555:(b) if he acts as trustee in the course of a business or profession, to any special knowledge or experience that it is reasonable to expect of a person acting in the course of that kind of business or profession.
192:
standard, massively extends the trustees' power of investment and limits the trustees' liability for the actions of agents, also providing for their remuneration for work done in the course of the trust.
808:
838:
768:
112:
638:
power of investment, trustees must regularly refer back to the standard investment criteria to check that they are being fulfilled. This does little more than restate what is given in the
51:
An Act to make fresh provision with respect to investment by trustees and persons having the investment powers of trustees, and by local authorities, and for purposes connected therewith.
798:
564:, depending on the size and responsibility of their office, to exercise "such care and skill as is reasonable in the circumstances". This codifies the common law and reflects
818:
1267:
Ch 61, remuneration allowed if in "all the other circumstances of the case, that it would be in the interests of the beneficiaries to increase the remuneration", and
858:
700:
it was confirmed that a trustee may escape liability for an agent's acts if he acted in good faith, which was simply a test of honesty rather than reasonableness.
627:
828:
848:
674:
384:
205:
1269:
1274:
204:
published a report advising reform of the rules over trustees delegating their powers to other people. Other trusts reform came about through the
1462:
216:) little else was done. Further papers were published on similar areas in 1997 and 1999, and finally the Trustee Bill 2000 was introduced to the
655:
259:
220:
in
January 2000, implementing the proposals laid out in the Law Commission's 1999 report "Trustees' Powers and Duties". The Act was given the
461:
696:
518:
1073:
1011:
1263:
264:
354:
349:
575:
According to Schedule 1, the duty of care may be excluded by the trust instrument, but if it is not, it must be exercised when,
224:
on 23 November 2000, and most of it came into effect on 1 February 2001 through the Trustee Act 2000 (Commencement) Order 2001.
56:
172:. Reform in these areas had been advised as early as 1982, and finally came about through the Trustee Bill 2000, based on the
1438:
1402:
1353:
984:
420:
254:
201:
173:
694:. The Act allowed the trustees to appoint an agent in good faith, and gave them no liability for the agent's acts. In
446:
184:
on 23 November 2000 and came into force on 1 February 2001 through the Trustee Act 2000 (Commencement) Order 2001, a
598:
Commentators have agreed that this is largely a reiteration of the previous common law rule on the duty of care. In
605:
274:
249:
165:
38:
511:
282:
364:
569:
269:
748:
639:
619:
456:
389:
287:
213:
560:
This test has both an objective and subjective element. There is an objective baseline of care that every
208:, but this did not cover most of trusts law. Although there were some other small changes (such as a 1996
1457:
565:
548:
must exercise such care and skill as is reasonable in the circumstances, having regard in particular -
504:
487:
451:
677:, which allowed trustees to buy land either as an investment or for habitation by the beneficiaries.
466:
200:
Lawyers and academics had been pushing for reform of this area of law since at least 1982, when the
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344:
334:
1430:
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46:
927:
209:
185:
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552:(a) to any special knowledge or experience that he has or holds himself out as having, and
8:
1385:
1030:
993:
813:
The words "Subject to the following provisions of this section" in Section 1(2), (3)-(5)
303:
753:
Sections 1–3,5,6,8,9,12,13,15 and 16(1), Schedules 1,2 and Paragraph 1(1) of Schedule 4
1412:
Shindler, Geoffrey (2001). "Trustee Act 2000: A Practical Guide on Some Key Features".
1151:
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129:
1434:
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369:
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235:
169:
91:
1143:
1026:
997:
788:
691:
644:
425:
374:
642:, however, and this provision has been criticised for not defining "suitable". In
1363:
Meakin, Robert (2001). "The Trustee Act 2000: points in practice for charities".
650:
600:
722:
540:
Part I of the Act sets out a general duty of care, which trustees have towards
394:
217:
177:
136:
1451:
1372:
541:
146:
as in force today (including any amendments) within the United Kingdom, from
717:
221:
181:
81:
176:'s 1999 report "Trustees' Powers and Duties", which was introduced to the
1138:
Langbein, J; R Posner (1980). "Social Investing and the Law of Trusts".
1155:
1147:
631:
561:
313:
953:"The Trustee Act 2000 (Commencement) Order 2001 (No. 49 (C. 2))"
716:
Part V of the Act, sections 28 to 33, deals with trustees'
544:. Section 1 defines this duty, which is that a trustee,
853:
Sections 6(4), 9(8), 17(1), Schedule 3, paragraph 3(4)
594:
dealing with audits and valuations of trust property.
188:, with the Act having effect over England and Wales.
1380:
Panesar, Sukhninder (2001). "The Trustee Act 2000".
892:
890:
849:
Trusts of Land and Appointment of Trustees Act 1996
675:
Trusts of Land and Appointment of Trustees Act 1996
385:
Trusts of Land and Appointment of Trustees Act 1996
206:
Trusts of Land and Appointment of Trustees Act 1996
763:Sections 70,71, Section 86(2) paragraphs A and B
618:previous provisions, which were contained in the
1449:
1137:
887:
212:that extended the rights of trustees under the
1395:Text, Cases and Materials on Equity and Trusts
992:s 174 (duty of care, skill and diligence) and
656:Harries v The Church Commissioners for England
512:
1012:Re Produce Marketing Consortium Ltd (No 2)
591:exercising powers to compound liabilities;
519:
505:
1115:
1113:
1111:
839:Church of England (Pensions) Measure 1988
532:remuneration for work done as a trustee.
168:that regulates the duties of trustees in
1411:
1230:
1228:
1226:
1180:
1178:
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1174:
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1038:
809:House of Commons Members' Fund Act 1962
684:
1392:
1379:
355:Perpetuities and Accumulations Act 2009
350:Perpetuities and Accumulations Act 1964
180:in January 2000. The bill received the
1463:United Kingdom Acts of Parliament 2000
1450:
1427:Todd & Wilson's Textbook on Trusts
1424:
1397:(4th ed.). Taylor & Francis.
1362:
1343:
1264:Re Duke of Norfolk's Settlement Trusts
1108:
913:
911:
667:
1348:(6th ed.). Routledge-Cavendish.
1223:
1171:
1035:
985:Bartlett v Barclays Bank Trust Co Ltd
769:Duchy of Cornwall Management Act 1893
130:Text of statute as originally enacted
113:Duchy of Cornwall Management Act 1893
612:
908:
13:
137:Revised text of statute as amended
14:
1474:
1024:TA 2000 Sch 1, para 7; see also
783:Sections 96, 98(1) and (2), 100
166:Parliament of the United Kingdom
39:Parliament of the United Kingdom
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585:appointing or reviewing agents;
535:
1018:
1003:
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967:
945:
920:
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793:Part 1, Sections 21,23 and 30
365:Recognition of Trusts Act 1987
1:
881:
195:
799:Clergy Pensions Measure 1961
749:Trustee Investments Act 1961
640:Trustee Investments Act 1961
632:occupational pension schemes
620:Trustee Investments Act 1961
390:Variation of Trusts Act 1958
214:Trustee Investments Act 1961
144:Text of the Trustee Act 2000
7:
1331:Trustee Act 2000 Schedule 4
869:
736:
582:acquiring or managing land;
123:Status: Current legislation
10:
1479:
819:Cereals Marketing Act 1965
729:
588:insuring trust properties;
488:Conflict of laws of trusts
18:United Kingdom legislation
1393:Ramjohn, Mohamed (2008).
1344:Hudson, Alastair (2009).
1273:(1734) 3 P Wms 249, 251,
1261:See Hudson (2009) p.317;
955:. UK Statute Law Database
928:"Trustee Act 2000 (C.29)"
467:Rule against perpetuities
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1071:Wilson (2007) p.374; nb
1009:Panesar (2001) p.29; cf
579:investing trust capital;
370:Statute of Frauds (1677)
345:Law of Property Act 1925
335:Charitable Uses Act 1601
67:Territorial extent
1431:Oxford University Press
1420:(1). Jordan Publishing.
1414:Elder Law & Finance
1367:. Sweet & Maxwell.
1365:Private Client Business
932:UK Statute Law Database
859:Cathedrals Measure 1999
360:Public Trustee Act 1906
1425:Wilson, Sarah (2007).
628:Authorised Unit Trusts
558:
493:Hague Trust Convention
227:
779:Settled Land Act 1925
685:Agents and delegation
546:
1382:Coventry Law Journal
1211:Ramjohn (2007) p.495
1119:Ramjohn (2007) p.494
1105:Ramjohn (2007) p.493
1096:Edwards (2007) p.456
973:Trustee Act 2000 s 1
829:Agriculture Act 1967
210:Statutory Instrument
186:Statutory Instrument
1386:Coventry University
1252:Hudson (2009) p.318
1243:Panesar (2001) p.34
1234:Panesar (2001) p.33
1220:Panesar (2001) p.32
1202:Hudson (2009) p.401
1193:Wilson (2007) p.376
1184:Panesar (2001) p.31
1168:Hudson (2009) p.400
1140:Michigan Law Review
1128:Shindler (2001) p.4
1087:Hudson (2009) p.332
1053:Hudson (2009) p.331
1044:Panesar (2001) p.30
994:Insolvency Act 1986
917:Panesar (2001) p.28
905:Shindler (2001) p.1
896:Shindler (2001) p.2
668:Acquisition of land
260:Discretionary trust
23:
1458:English trusts law
990:Companies Act 2006
876:English trusts law
759:Charities Act 1993
734:The Act repealed:
624:Charities Act 1993
411:Account of profits
340:Charities Act 2006
255:Constructive trust
148:legislation.gov.uk
21:
1440:978-0-19-920326-0
1404:978-0-415-44294-7
1355:978-0-415-49771-8
1346:Equity and Trusts
1062:Meakin (2001) p.2
867:
866:
613:Investment powers
529:
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472:Three certainties
462:Trustee liability
236:English trust law
170:English trust law
154:
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101:Other legislation
71:England and Wales
27:Act of Parliament
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1429:(8th ed.).
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375:Trustee Act 1925
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283:Resulting trust
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96:1 February 2001
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1199:
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1125:
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1102:
1093:
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1031:EWCA Civ 1279
1029:
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995:
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987:
986:
979:
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954:
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709:
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682:
678:
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641:
635:
633:
629:
625:
621:
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584:
581:
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563:
554:
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550:
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545:
543:
542:beneficiaries
533:
522:
517:
515:
510:
508:
503:
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494:
491:
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486:
485:
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480:International
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296:Functionaries
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270:Purpose trust
268:
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265:Express trust
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1338:Bibliography
1327:
1322:TA 2000 s 33
1318:
1313:TA 2000 s 32
1309:
1300:
1291:
1282:
1268:
1262:
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1005:
983:
978:
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957:. Retrieved
947:
935:. Retrieved
922:
901:
733:
721:
718:remuneration
715:
712:Remuneration
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702:
695:
688:
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643:
636:
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599:
597:
574:
559:
547:
539:
536:Duty of care
530:
379:
288:Secret trust
275:
222:Royal Assent
199:
190:
182:Royal Assent
157:
155:
92:Commencement
82:Royal assent
15:
959:28 November
773:Entire Act
452:Formalities
304:Beneficiary
1452:Categories
988:1 Ch 515,
882:References
697:Re Vickery
276:Quistclose
196:Background
61:2000 c. 29
47:Long title
1373:0967-229X
1078:any case.
1015:5 BCC 569
937:1 October
309:Protector
1074:Re Wragg
870:See also
403:Remedies
327:Statutes
57:Citation
1156:1288337
996:s 214 (
743:Extent
730:Repeals
566:company
562:trustee
457:History
447:Cy-près
431:Tracing
421:Damages
319:Trustee
314:Settlor
164:of the
1437:
1401:
1384:(28).
1371:
1352:
1154:
1142:(72).
1152:JSTOR
439:Other
278:trust
76:Dates
1435:ISBN
1399:ISBN
1369:ISSN
1350:ISBN
982:See
961:2009
939:2009
740:Act
568:and
156:The
1144:doi
630:or
228:Act
162:act
1454::
1433:.
1416:.
1225:^
1173:^
1150:.
1110:^
1037:^
930:.
910:^
889:^
634:.
626:,
604:,
1443:.
1418:1
1407:.
1388:.
1375:.
1358:.
1158:.
1146::
1000:)
963:.
941:.
520:e
513:t
506:v
150:.
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