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Equity & Trusts

7. Trust Disputes and Remedies

Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 24 Jul 2015
    7. Trust Disputes and Remedies
  • Many complex issues arise in the context of trusts including:
    • whether a trust has been properly created;
    • disputes over the management of the trusts including the appointment, removal and remuneration of trustees;
    • income division including access to income and the splitting of income between family members and business operators;
    • taxation problems;
    • interpretation of ambiguous trust deeds; and
    • breaches of duty by trustees
  • Because of the complex nature of trust disputes it is advisable to consult a lawyer who can help you understand the issues and pursue an appropriate solution.
  • Some trust disputes result in litigation. Whether you are seeking to defend your actions as trustee or obtain a remedy in the event of a breach of duty there are lawyers who can assist. You can use our free Find a Lawyer directory to contact a lawyer near you.
  • Most remedies aim to ensure a fair and just outcome for beneficiaries especially where there has been a defect or technical mistake when setting up the trust or where a trustee has committed a wrong. The most appropriate remedy will depend on the nature of problem you are facing.
  • If a trustee is not adequately performing their duties or has committed a breach you can seek to have them removed. Each state and territory has laws that stipulate when a beneficiary can ask the court to remove and substitute a trustee.
  • The trust deed is the best starting point. It may specify the method of removing a trustee and in what circumstances this can be done. Where the trust deed does not provide this information removing a trustee may be difficult and require litigation.
  • Depending on the situation you will need to prove that a breach has been committed or there is another reason why the trustee is not fit to act. You will have to prove that:
  • removing the trustee is required in order to protect the trust assets and the interests of the beneficiaries;
  • the trustee is not abiding by the terms of the trust deed; or
  • the trustee is not fulfilling their duties in the best interests of the beneficiaries.
  • You can nominate an appointor in the trust instrument to minimise the risk of having to go through the courts to substitute a trustee.
  • Generally discretionary trusts will have an appointor or multiple appointors who have the power to remove a trustee and appoint a new trustee. This person has the power to remove a trustee because of:
    • a breach; or
    • when the trustee has made unsatisfactory allocations of income or property.
  • Beneficiaries can ask for the trustee to render an account to them at any time. If the trustee fails to do so a court may order the trustee to provide an account of the position of the trust. Where a breach of trust is found this can provide the basis for an order that the trustee account for their actions.
  • The types of remedies that exist for the resolution of trust disputes include:
    • an order for equitable compensation where a breach by the trustee has resulted in the beneficiaries suffering an economic loss;
    • an order for an account of profits where a trustee has made a profit from their position as trustee in breach of their duty not to do so without consent of the beneficiaries;
    • an injunction to restrain the trustee from dealing with trust assets in a way that would breach their duties as trustee such as:
      • selling the property under value;
      • using the assets for their own profits; or
      • transferring them to an ineligible person.
  • If a trustee refuses to perform their duties under the trust a court may direct them to do so. Such an order will be specific and will stipulate the actions that the trustee must perform. However the court will not compel a trustee of a discretionary trust to distribute the assets in a certain way but simply to make a distribution.

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