Duties of a Successor Trustee

New trustees trustees should investigate the conduct of the trust prior to their appointment and the trust documents, which they are entitled to do since they belong to them jointly with the continuing trustees: Tiger v Barclays Bank [1951] 2 KB 556 at 559, affd [1952 1 All ER 85. {[9.2210] Ford & Lee}

A successor Trustee has a duty to take proceedings against a former Trustee who has committed a Breach of Trust causing a loss to the Trust Estate

Young and Ors v Murphy and Anor; Swinbank and Ors v Murphy and Anor [1996] VicRp 19; [1996] 1 VR 279

 

The standing of a trustee to take proceedings to have a breach of trust redressed against a trustee or former trustee or a stranger who has become liable to redress a breach of trust is well recognised. Not only may a trustee take such proceedings, but he runs the risk of himself committing a breach of trust if he fails to do so: Scott on Trusts, s177, s223 and s223.3; Bogert, Law of Trusts and -

Trustees, s592; Bogert, Handbook of the Law of Trusts, s97; Re Brogden (1888) 38 Ch D 546. His obligation to take the proceedings (unless they would be futile) is part of his duty to get in the trust estate, which includes rights of action against co-trustees or former trustees and strangers for breach of trust. This is clear as a matter of both principle and authority. Moreover, since the trustee will take the proceedings for breach of trust for the benefit of the beneficiaries, he can sue even if he was a party to the breach of trust or some other breach of trust. The principle is shortly stated in Snell’s Equity, 29th ed, at 286-287, where it is said of a new trustee: If … he discovers that breaches of trust have been committed, he must obtain satisfaction for them from the old trustee, just in the same way as an original trustee must get in any part of the trust estate which is outstanding: and the only excuse for not doing so is that it would be useless to take proceedings against the old trustees. Snell rightly cites Re Forest of Dean Coal Mining Co (1878) 10 Ch D 450 for the proposition.

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