ABSTRACT
It is perhaps surprising that the last of the beneficiary’s remedies to be considered is the personal action for breach of trust. After all, the attempt to fix a stranger with a constructive trust (Chapter 7) and the remedy of tracing (Chapter 8) are triggered by an initial breach of trust by the trustee. Moreover, even in situations where these other remedies are available, if the trustee responsible for the breach is able to satisfy the claims of the beneficiaries in full, a personal action for damages for breach of trust will be the normal course of action and the court may insist that it is pursued before other avenues are followed. As we have seen, the constructive trust and remedy of tracing are used principally against third parties, being persons who have meddled with the trust or who have come into possession of the trust property subsequent to the trustee. In contrast, the action for breach of trust is personal to the trustee in two senses. First, only those trustees who are responsible for the breach of trust may be sued for damages, although the extent of the ‘personal responsibility’ of a trustee for breach of trust is quite wide. Secondly, the action for breach of trust itself is a personal action and the successful claimant (usually the beneficiary) will become a normal judgment creditor. Consequently, in the event of the trustee’s bankruptcy or death, the beneficiary will have to take her chance along with all of the other creditors and claimants and may not receive all of the damages awarded in the breach of trust action. This is why the proprietary remedies discussed in the two previous chapters are so useful when specific trust property is still in existence.
