Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the following: the different types of trustee; the number of trustees required; the general duties of trustees; trustee decision making; disclaiming trusteeship; who is eligible to be a trustee; who has power to appoint trustees, express and statutory powers; the appointment of trustees by the beneficiaries; the appointment of trustees by the court; the vesting of the legal estate in the trustees; the retirement of trustees; and the removal of trustees; protection of beneficiaries.
12
Chapter
12. The appointment of trustees
Chapter
26. Powers of appointment
This chapter focuses on the powers of appointment. Powers of appointment confer on a person who does not own property the authority to choose who shall become the owner. The key feature of a power of appointment is that it is discretionary in character. The donee of a power is under no enforceable obligation to make any appointments of the fund at all. Even if the donee were never to make any appointments at all, they would not be in breach of a duty owed either to the donor or to the potential objects of the power. The court will not step in to compel the exercise of the power, but it will exercise a supervisory jurisdiction to ensure that, if the donee does decide to exercise the power, they do so properly.
Chapter
6. Corporate Governance
This chapter discusses the role of the directors and the board of directors as an organ of the company. It covers: the appointment of directors; eligibility for appointment as a director; defective appointments and the validity of acts of directors; publicity and the appointment of directors; acting as a board of directors; removal of directors; directors acting after their office is vacated; the rights of directors on termination of appointment; and directors’ disqualification.
Chapter
11. Trustees’ duties and powers
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the main duties and powers of trustees. Rather than rigidly separating duties and powers, it presents the duties and powers of trustees in a way which reflects how they might arise during the operation of a trust. It first addresses the initial questions of the appointment, removal, and payment of trustees. It then examines issues arising on appointment to the trust and the fiduciary nature of trustees’ duties. Finally, it examines issues likely to arise during the administration of the trust, including the trustees’ powers of investment, beneficiaries’ right to information about the trust, and trustees’ powers of maintenance and advancement.
Chapter
6. Non-Charitable Purpose Trusts
Paul S Davies and Graham Virgo
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses non-charitable purpose trusts and how they are generally considered as void because there are no ascertainable beneficiaries who are able to enforce the trust. There are a variety of mechanisms that can be adopted to implement a non-charitable purpose, including the use of fiduciary powers and the appointment of enforcers to enforce the trust. In exceptional cases, non-charitable purpose trusts can be considered valid, but only if it can be shown that the purpose directly or indirectly benefits ascertained individuals. Testamentary trusts for certain recognized purposes, such as for animals, may also be exceptionally recognized as valid, in which case, the trustees are not obliged, but have the option, to carry out the trust.
Chapter
28. Powers of maintenance and advancement
This chapter discusses the trustees’ powers of maintenance and advancement. The powers of trustees can be divided into two categories: management powers and distributive powers. Management powers are those which relate to looking after the trust property, for instance, investing a fund or insuring a property. Distributive powers are those which relate to deciding who benefits. Generally the decision as to benefit will have been made by the settlor, by creating a fixed trust, by giving the decision to trustees through a discretionary trust, or by conferring a power of appointment on the trustees or a third party. In addition to this, however, there are some instances where trustees can make a decision as to who benefits from a trust fund, even where not expressly provided for by the settlor.
Chapter
14. Dispositive Powers and Duties
This chapter examines the powers and duties of trustees relating to the distribution of trust property to beneficiaries or objects. It explains that dispositive powers enable the trustees to exercise a discretion relating to the distribution of trust assets and dispositive duties requires them to act in a particular way or to make a particular decision. This chapter also discusses the underlying principles of the duty to distribute and the powers of appointment, maintenance, and advancement. The chapter further considers a variety of principles which are applicable to determine how powers of appointment should be exercised, what happens when the power is not exercised properly, and mechanisms to assist trustees in the exercise of these powers.
Chapter
14. Introduction to Judicial and Dispute Resolution Functions
This chapter provides an overview of the themes covered in Part IV of the book. Chapter 15 examines the constitutional position of judges within the United Kingdom, looking in particular at judicial independence and at the process by which judges are appointed. Chapter 16 looks at redress mechanisms outside the court system—a terrain often referred to as the landscape of ‘administrative justice’. Chapters 17–19 examines judicial review of the legality of actions taken by public authorities; Chapter 20 examines the use of human rights arguments against these authorities.
Chapter
16. Introduction to Judicial and Dispute Resolution Functions
This chapter provides an overview of the themes covered in Part 4 of the book, consisting of Chapters 16 to 20. Chapter 17 examines the constitutional position of judges within the United Kingdom, looking in particular at judicial independence and at the process by which judges are appointed. Chapter 18 looks at redress mechanisms outside the court system—a terrain often referred to as the landscape of ‘administrative justice’. Chapter 19 examines the grounds on which the courts will judicially review the legality of actions taken by public authorities; Chapter 20 examines the use of human rights arguments against these authorities.
Chapter
17. The Judiciary
This chapter begins with discussions of the role of the judiciary in the UK, its relationships with other institutions, and qualifications for being a judge. It then considers the issue of judicial independence and how independence can be retained while ensuring that judges are accountable. There is a mini case study on the controversies surrounding media criticism of the judges following the decisions in the Miller case. The chapter also considers impartiality; the appointment of judges; the need to improve diversity of the judiciary; and the use of judges to chair public inquiries.
Chapter
14. Dispositive Powers and Duties
This chapter examines the powers and duties of trustees relating to the distribution of trust property to beneficiaries or objects. It explains that dispositive powers enable the trustees to exercise a discretion relating to the distribution of trust assets and dispositive duties requires them to act in a particular way or to make a particular decision. This chapter also discusses the underlying principles of the duty to distribute and the powers of appointment, maintenance, and advancement. The chapter further considers a variety of principles which are applicable to determine how powers of appointment should be exercised, what happens when the power is not exercised properly, and mechanisms to assist trustees in the exercise of these powers.
Chapter
7. The Judiciary
This chapter, which focuses on the judiciary, discusses the structure of the judicial system, the role of the judiciary, and the characteristics of the judiciary.
Chapter
9. Trusts of land
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses trusts of land. The creation of concurrent interests in land generally now occurs by way of a trust of land, governed by the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) and replacing their forerunner, trusts for sale. Trusts of land may be expressly or impliedly created and, where implied, may be resulting or constructive trusts. Key provisions of TLATA 1996 include: ss 6–8 governing the extent of trustees’ powers over the trust property; s 11 governing the circumstances in which trustees have a duty to consult beneficiaries when exercising their powers; ss 12–13 governing the rights of beneficiaries to occupy the trust property; and ss 14–15 governing the right of an interested party to make an application to the court for an order to resolve a dispute over trust land.
Chapter
15. The Judiciary
This chapter begins with discussions of the role of the judiciary in the UK and its relationships with other institutions. After then looking at some facts and figures on the makeup of the judiciary the chapter considers the issue of judicial independence and how independence can be retained while ensuring that judges are accountable. There is a mini case study on the controversies surrounding media criticism of the judges following the decisions in the Miller 1 case. The chapter also considers impartiality; the appointment of judges; the need to improve diversity of the judiciary; and the use of judges to chair public inquiries.
Chapter
6. The Crown, royal prerogative, and constitutional conventions
This chapter explores the historical, legal, and political nature of the Crown and the royal prerogative. The rule of law requires that the government act according to the law, which means that the powers of the government must be derived from the law. However, within the UK Constitution, some powers of the government stem from the royal prerogative, as recognized by the common law. The concepts of the Crown and the royal prerogative mean that although the Queen is Head of State, it is generally the ministers who form the government that exercise the prerogative powers of the Crown. For this reason, many prerogative powers are often referred to as the ‘ministerial prerogatives’, and the few prerogative powers still exercised personally by the monarch, are referred to as the ‘personal prerogatives’.
Chapter
7. The Judiciary
This chapter focuses on the judiciary; the courts play a special role in constitutional terms and an independent judiciary is a prerequisite in any civilised society subject to the rule of law. The chapter first discusses the hierarchical structure of the judicial system in the UK before moving on to consider the role of the judiciary and issues that concern the courts’ place within, and responsibility for upholding the principles of, the constitution. Finally, the chapter examines the characteristics of the judiciary, such as the way that judges are appointed, the independence of the judiciary, and its diversity.
Chapter
3. Trusts and powers
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter explores the features of express trusts, with a focus on powers. The discussions cover fixed trusts, discretionary trusts, and powers of appointment; the variety of interests under express trusts; the kinds of powers and duties under a trust; faulty exercises of powers; judicial control of the exercise of discretions; and limitations on the settlor’s ‘freedom of trust’.
Chapter
13. Express and implied trusts
Course-focused and comprehensive, the Textbook on Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter provides an outline of certain matters relating to trusts of land. It covers the separation of title and enjoyment; express and implied trusts; statutory trusts; and the pre-1997 methods of creating settlements of land, which are now replaced by the new trust of land under the Trusts of Land and Appointment of Trustees Act 1996. In addition, the chapter includes a more detailed account of resulting and constructive trusts.
Chapter
14. Trusts of land
Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter begins by discussing changes introduced by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). The operation of the new trust of land is regulated by Part 1 of TOLATA 1996, and the rest of the chapter deals with these provisions. These are illustrated by reference to: Mary Brown, the owner of 10 Trant Way, who needs advice about creating a settlement in her will; and six students who hold 8 Trant Way as co-owners, and are therefore subject to a statutory trust of land. Three special dispositions which would previously have created Settled Land Act settlements but now give rise to trusts of land are also identified.
Chapter
6. Corporate governance—board structure and shareholder engagement
This chapter discusses the appointment and removal of directors. Directors are responsible for the management of the company’s business, for which purpose they may exercise all the powers of the company. The chapter considers three classes of directors: the de jure director, the de facto director, and the shadow director. It identifies the characteristics of each category and the liabilities which attach in the event that someone is classed as being a director. It also considers whether fiduciary duties are owed by shadow directors. The position of corporate directors is also considered. In addition, the remuneration of directors is addressed.
12
