ABSTRACT
Subject to provisions to the contrary in the trust instrument, trustees are required to act unanimously. The settlor has given all of his or her trustees the responsibility to act on behalf of the trust. The acts and decisions of some of the trustees (even a majority of trustees) are not binding on others. Thus, once a trust decision is made, the trustees become jointly and severally liable to the beneficiaries in the event of a breach of trust. There is no such thing as an ‘active’ or ‘passive’ trustee. Each becomes liable as a representative of the trust. The main issue in this context is whether a trustee who disagrees with the decision or views of his co-trustees ought to hold firm and make an application to the court, or succumb to the views of the co-trustees. This would vary with the circumstances of each case: see Bahin v Hughes.
