Trustee de son tort

A person who intermeddles with the affairs of a trust without being lawfully appointed to the office of trustee is known as a “Trustee de son tort” {ie a trustee of his own wrong}.

A Trustee de son tort retains the liabilities of a lawfully appointed trustee, however a Trustee de son tort cannot exercise the powers of a lawfully appointed trustee.

The leading cases are:

Meier v Dorzan Pty Limited & Anor [2010] NSWSC 664

This case involved a superannuation fund where the terms of the trust required a body corporate to be appointed as a Trustee of the fund.

A Deed of Variation purported to appoint a natural person as the Trustee of the fund instead of a corporate Trustee as required by the terms of the Trust Deed.

The purported new natural person trustee was held by the court to be a Trustee de son tort and the corporate Trustee remained the Trustee of the fund.

NSW Masonic Youth Property Trust v Attorney-General [2009] NSWSC 1301

The Court ruled that a valid express trust was created on 2 March 1923 and that purported amendments in 1927 were not effective because they were no within the power to amend since no such power had been provided when the trust was created on 2 March 1923.

The purported amendments provided for a different class of Trustees to be appointed. These appointments were held by the Court to be invalid and the new purported Trustees were in fact Trustees de son tort.

Jasmine Trustees Ltd v Wells & Hind [2007] 3 WLR 810, [2007] 1 All ER 1142, [2007] EWHC 38 (Ch)

Mara v. Browne [1896] 1 Ch 199

 

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