NHCN

LLB (Hons) UiTM

WEEK 3 TRUST TUTOR

That the settlor did not appoint trustees has never prevented courts of equity from enforcing a
trust. A trust will not fall for want of a trustee. This is the principle on which courts have acted.
The court can appoint new trustees for the administration of the trust, what had made the trust
so effective is the co-operation of the court may be asked to supervise the execution of the trust
deed.

Ligar Fernandez v Eric Claude Cooke

The principal duties of an executor are to get in the assets of the deceased to pay his debts, to
pay the legacies given in the Will and to distribute the assets. The duties of the Executor.

Bhikku Daeng & Anor v Maung Shwe Tyn & Anor - Appointment

Re Tempest
The discretion which the court exercises in appointing new trustees is not a mere arbitrary
discretion, but is to be exercised in accordance with certain principles. Among them are the
following:
1) In selecting a person for the office, the court will have regard to the wishes of the author
of the trust, expressed in, or plainly deduced from, the instrument creating it.
2) The court will not appoint a person with a view to the interest of some of the
beneficiaries, in opposition to the interest of others.
3) The court will have regard to the question whether the appointment will promote or
impede the execution of the trust.

The mere fact of the continuing trustee refusing to act with the proposed new trustee would not
be sufficient to induce the court to refrain from appointing him. For this would be to give the
continuing or surviving trustee a veto upon the appointment of the new trustee. In such a case, it
must be the duty of the Court to inquire and ascertain whether the objection of the surviving or
continuing trustee is well founded or not, and to act or refuse to act upon it accordingly.

One of the main duties of a personal representative is to hold the scales evenly amongst the
beneficiaries. He has therefore the primary duty to act with detachment and impartiality (Yusof
bin Ahmad bin Talib & Ors v Hongkong Bank Trustee (S) Ltd). Where the personal
representative fails to act impartially, he may be sued by other beneficiaries who have been
adversely affected by his actions. All personal representatives must also bear in mind that what
may be considered a civil breach of trust may sometimes become a criminal breach of trust
where dishonest intention can be shown.

Miller v Cameron
The jurisdiction of the court to remove is exercised with a view:
1) to the interest of the beneficiaries;
2) to the security of the trust property; and
3) to an efficient and satisfactory execution of the trusts and a faithful and sound exercise
of the powers conferred upon the trustee.
In deciding to remove a trustee, the court forms a judgment based upon considerations to show
that the welfare of the beneficiaries is opposed to his continued occupation of the office. Such a
judgment must be largely discretionary.
It is fundamental that a trustee must carry out the terms of the trust. If he fails to do so, he may
be removed as trustees by a court even if no harm has been done to the beneficiaries or to the
trust.