ABSTRACT
Powers must be distinguished from duties – because there are significant consequences depending on whether something is one rather than the other:
duties are obligatory – and failure to comply can lead to breach of trust actions;
powers are discretionary – so there is no compulsion other than to exercise the discretion;
but trustees must act impartially towards beneficiaries where they exercise discretion – and would not be impartial if the discretion were exercised to achieve an unlawful purpose ( Chirkinian v Arnfield (2006)).
trustees need not give reasons for their the exercise of their discretion ( Re Beloved Wilkes Charity (1851));
where the trustees give reasons for a decision and the reasons are not bona fide then the court can intervene in the exercise of a discretion.
