The trust has achieved a separation of the legal and equitable ownership by imposing on the legal owner, the trustee, an obligation to hold the trust properties for the benefit of the beneficiaries. That obligation is a characteristic feature of the trust. The unit trust involves a split of that trust obligation into the custody of the trust corpus and the management of that corpus. If the trust is a manipulation of the facets of ownership’ resulting in a two-party relationship, the unit trust is a furtherance of that manipulation which results in a tripartite relationship.

This manipulation is a product of a contract that incorporates the trust. This contractual element signifies a service dimension of the trusteeship— one which is about engagements of the professional services of the trustee, the manager, advisers, and experts that may be involved in the management of unit trust assets. It also signifies a business use of the trust institution for the purpose of active generation of wealth, a move away from its conventional use as a means of passive preservation of assets or their value. It is a move that requires those managing the trust assets to take risks rather than to avoid them. It is a situation where they will be judged not only in terms of honesty and loyalty but also in terms of skill and performance.

FundsBy vesting the management powers in the hands of the manager, the trustee as a legal owner may be subject to the directions of the manager when such powers are exercised or will have to obtain the manager’s consent in some circumstances. At the same time, there are numerous instances where the manager is required to obtain the consent of the trustee. The trust deed, ancillary contracts, and the Financial Services Act 1986 and its regulations may also allocate duties and powers to other parties. The ways that powers and responsibilities may be shared and the complexity that may be involved depend on the construction of the provisions of the trust deed and on how the relationships of the parties are structured.

The purpose is to examine various types of splitting of powers in a unit trust and the consequences for the trustee and the manager. Before this examination is proceeded to, the management power structure of the unit trust and the duty context of management powers will be discussed.

The nature of trusteeship has undergone a gradual evolution which is tied closely with the nature of the trust corpus and with changes in social conditions. The trust was a product that originated from the medieval use of land. It was a device that enabled landowners to evade taxes, to avoid forfeiture in civil wars, to circumvent mortmain statutes, to create separate estates for married women, and to make provisions for family members generally. With land as the predominant type of trust property and with trustees essentially being friends and relatives amongst the landowning class, the powers and duties of trustees were essentially administrative in character. Once economic life became more complex, there were more demands on trustees‘ abilities to manage trust assets. This might be difficult for trustees who did not possess either the ability or the time to look after affairs of their friends.

The inevitable result was for the powers of the trustee to be shared by those who had the necessary expertise. One development was the enactment of section 23 of the Trustee Act in 1925. This permitted the delegation to agents and those qualified without any liability to the trustee acting in good faith. Of course, this was not the only development. There was a growing demand for more trustees as a result of the general growth of wealth in the population, the widespread use of wills by them, complexity of modern investments, and also the emerging problems of fraud and incompetence amongst some private trustees. This led to the emergence of corporate trustees.6 As observed by Keeton,’ the emergence of corporate trusteeship has tended to bring about a differentiation in functions between trustees. The enactment of the Public Trustee Act of 1906 to facilitate the simultaneous appointments of a custodian trustee and a managing trustee for a trust was a full recognition of the need for specialization. The provisions of this Act have not been widely used by settlors of private trusts. However, its idea of specialization is found in many modern forms of trust. Thus, a trustee of a charity may be subject to directions of a committee, an occupational superannuation fund may have an investment board, a trustee of partnership assets may be subject to majority decisions of managing partners, a trustee of an unincorporated body may be subject to the directions of the governing committee, and a trustee of a private trust may be required to obtain the consent or approval of a protector in the exercise of dispositive or administrative powers.

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