Post by Sapphire Capital on Oct 24, 2008 20:47:25 GMT 4
Can I Change My Mind? Undoing Trustee Decisions
Lionel Smith
Quebec Research Centre of Private and Comparative Law
Estates Trusts & Pensions Journal, Vol. 27, p. 284, 2008
Abstract:
Sometimes trustees regret a decision they have made regarding trust assets, often because it has unforeseen taxation implications. This paper explores the legal techniques that may be available for undoing such a decision. This includes a discussion of the nature and limits of rectification, rescission, and the so-called "Rule in Re Hastings-Bass" that has featured in recent English litigation. The author argues that this so-called Rule is not an independent principle. Trustee decisions are reviewable on the basis of the limits of trustee powers and, separately, on the basis of trustees' fiduciary obligations, which require trustees to exercise their powers for appropriate purposes.
papers.ssrn.com/sol3/papers.cfm?abstract_id=1272485
Lionel Smith
Quebec Research Centre of Private and Comparative Law
Estates Trusts & Pensions Journal, Vol. 27, p. 284, 2008
Abstract:
Sometimes trustees regret a decision they have made regarding trust assets, often because it has unforeseen taxation implications. This paper explores the legal techniques that may be available for undoing such a decision. This includes a discussion of the nature and limits of rectification, rescission, and the so-called "Rule in Re Hastings-Bass" that has featured in recent English litigation. The author argues that this so-called Rule is not an independent principle. Trustee decisions are reviewable on the basis of the limits of trustee powers and, separately, on the basis of trustees' fiduciary obligations, which require trustees to exercise their powers for appropriate purposes.
papers.ssrn.com/sol3/papers.cfm?abstract_id=1272485