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Trusts- Scotland
- Real subrogation: The trust assets from a fund or estate or
special patrimony. The replacement or substitution of one
asset with another is real subrogation
- Characteristis: the assets constitute a separate fund and are not part of
the trustee’s own estate b) title to the trust assets stands in the name of
the trustee or in the name of another person on behalf of the trustee.
- Public and private trusts: Salvesen’s Trs v Wye: the trust could be
classified as private or public- Importance of distinction:
- Discretionary trusts if the trustees are given an element of discretion as to the extent to which given
beneficiaries will benefit. It may be wholly or partially discretionary- Anderson v Smoke
- Liferent trusts- improper liferent
- Charities
- Voluntary trusts
- Mortis causa
- Inter vivos
- the declaration of trust
- the vesting of property in the trustees
- the declaration of trust
- Mortis causa
- Involuntary trusts
- By statute
- Constructive
- Implied
- Reaultting
- By statute
- Investing duties:
- (a) apply trust property to trust purposes
(separate patrimonies)
- b) high standard of administration Clarke v Clarke’s Trs:
liable to make good the loss
- (a) apply trust property to trust purposes
(separate patrimonies)
- The rule against accumulation
- Duty to keep accounts and to give information to beneficiaries
- Fiduciary duties of trustees: Sarris v Clark Martin v City of Edinburgh
- Breach of trust
- - Ultra vires breach: trustee do something outwith their powers[unauthorized investment] - Intra vires breach: do something within their powers but do it badly - Breach of fiduciary duty
- - Ultra vires breach: trustee do something outwith their powers[unauthorized investment] - Intra vires breach: do something within their powers but do it badly - Breach of fiduciary duty
- Remedies for breach of trust:
- Damages
- Judicial relief: s.32 1921 Act
- Immunity clauses
- Perscription
- Running for cover
- Liability for third parties
- Insolvency
- Variation and termination
- s.5 and s.1 1961 Act
- Termination: Private trusts: Miller’s Trustees v Miller
- VARIATION AND EARLY TERMINATION OF PUBLIC TRUSTS
- Variation of public trusts
- Variation of non-charitable public trusts
- Variation (reorganization) of charitable tusts
- Cy pres schemes
- Initial failure
- subsequent failure
- Initial failure
- Variation of public trusts
- s.5 and s.1 1961 Act
- Damages
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