ABSTRACT
The duty not to delegate is another example of the powerful nature of the trust obligation. It is for the trustee to discharge his specific duties and to exercise any discretionary powers. Any unauthorised delegation of these responsibilities is itself a breach of trust. Indeed, even if a trustee legitimately delegates some administrative function connected with the trust (such as the purchase of shares), that trustee still may be liable for breach of trust even though the act which gives rise to the breach
was committed by the person to whom the task was entrusted. Secondly, although the appointment and removal of trustees may seem a technical matter, it is of considerable practical importance. Trustees die, retire, or simply desire to have nothing more to do with the trust and it is imperative that the good administration of the trust fund does not suffer because of a lack of new or suitably qualified trustees. The relevant principles are to be found primarily in statute, albeit supplemented by case law. Thirdly, the power of maintenance and advancement refers to an attribute enjoyed by trustees of certain kinds of trust. In outline, such powers allow the trustee either to use the income from trust property for the benefit of an infant beneficiary before the infant is actually entitled to it (power of maintenance) or to pay a proportion of the trust’s capital sum to a potential beneficiary before he or she becomes absolutely entitled to it (power of advancement). These powers may be either expressly included in the trust instrument or implied under ss 31 and 32 of the Trustee Act 1925. Fourthly, the investment of trust property is one of the most important of the trustees’ responsibilities, for it ensures that the trust fund generates the maximum benefit for all the beneficiaries. Consequently, it is vital that the trustees invest the capital monies lawfully, securely and competently, bearing in mind the need to provide a good income for those immediately entitled and to preserve the capital value of the fund for those entitled in remainder. Most professionally drafted trusts include express powers of investment but a trustee may also take advantage of the provisions of the Trustee Act 2000. Finally, the court’s power to sanction a change in the nature or extent of the powers and duties of a trustee (and, indeed, other aspects of the trust) falls within the general law on variation of trusts. As we shall see, this jurisdiction is both inherent and statutory although, because it often involves amending the settlor’s or testator’s original intentions, the court exercises its power with considerable care and in limited circumstances only. This is particularly so where it is not only the trustees’ powers and duties that may be varied but also the nature and extent of the beneficiaries’ equitable interests.
