Equity & Trusts - Breach of Trust

There are essentially two types of remedy available in this area:
*in personam (against the person for breach of a duty of care etc.)
*in rem (against the property, normally when you are trying to get it back)
There also happen to be two types of breach:
*where the trustee has done something they are not allowed to
*where the trustee does something they are allowed to but does so in a negligent manner
In the first type of breach it is possible to get a remedy by considering this a falsifying of the account. In other words the money taken by the trustee is considered to be their own money and they then have to reimburse the trust (Nocton v Lord Ashburton [1914])
Where the breach is one of negligence it is more appropriate to think about the idea of surcharging the account. This is where the trustee makes up the difference that has been caused by their negligence as seen in Target Holdings v Redferns [1996]
If a trustee has made a profit from their office then this can create a personal remedy but is more likely to be considered by the court as establishing a constructive trust in relation to the profits (Keech v Sandford (1726); Boardman v Phipps [1967])
If a third party receives trust property that they should not have got then they must return it if:
*they received it as a gift (equity will not assist a volunteer)
*they had knowledge which makes it unconscionable for them to retain the benefit; Nourse LJ in Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001]; (suspicion is not enough - Abou-Rahmah v Abacha [2006])
A person who assists a breach may be liable to account for any profits
They can also be liable in equity if they are dishonest
The test for dishonesty traditionally comes from Twinsectra Ltd v Yardley [2002]:
D was dishonest by reasonable standards and realised that by those standards the conduct was dishonest
However Barlow Clowes Intl Ltd v Eurotrust Intl Ltd [2006] suggests a more objective standard:
The test is an objective one but can take into account subjective factors such as the experience and intelligence of the defendant
Injunctions can be used in certain circumstances such as where a breach is anticipated
When it comes to tracing you follow the property and the person who ends up with it is considered to be a constructive trustee
However this is not automatic and in fact the right is rather limited in its scope
E.g. If funds are mixed and the person goes bankrupt then they are lost
There are four preliminary requirements for tracing:
*Existence of a fiduciary relationship
*Existence of an equitable proprietary interest
*Tracing itself would not be inequitable; Re Diplock (1948)
*The property must be in a form in which it can be traced; Bishopsgate Investment Management v Homan [1995]
The first rule is that when money is withdrawn from an account, the trustee is presumed to be spending her own money first; Re Hallett’s Estate (1880)
Beyond that amount the money is presumed to be from the trust itself
Later repayments to the account are not repayments to the trust unless that is explicitly stated; Roscoe v Winder [1915]
If a mixed fund is used to purchase property then the beneficiaries have first charge over this property; Re Oatway (1903)
If the property increases in value they can take their portion
If the property decreases in value they can take the original sum that was invested
Foskett v McKeown [2001]
Finally where money is mixed into an account from two trusts then tracing operates on a principle of ‘first in, first out’ (Clayton's Case (1816); Barlow Clowes Intl v Vaughan [1992])
Other points to consider when dealing with breaches of trust include:
A trustee may be able to avoid liability; Armitage v Nurse [1997]
If a beneficiary contributes to a breach of trust then their interest may be held back by the court to compensate other beneficiaries
A beneficiary who consents to a breach cannot then sue after the fact

[@TheresaRocheactress]

Marcus is so good isn't he? He is blessed by looking about 21 years old! I am sure young students connect with him immediately. I love the way he cuts the wordy garbage of legalese and translates it all into simple English!

[@hollynorris4220]

Thank you for your videos. Your the one I watch and trust. God Bless.

[@nahshonarvin]

Exceptionally explained, something my lecturers would not be able to do! Watching this before my paper which I anticipate would have a question on tracing. Thank you for the video Marcus and keep doing what you do, maybe also set a goal for 100k? We're here to support you.

[@__nina]

did you end up having a question on tracing

[@emilynkargbo7448]

Hi Marcus, am from Sierra Leone and your videos have been helping me a lot. Thanks!!

[@marcuscleaver]

Thanks Emilyn! Would love to visit Sierra Leone one day!

[@lolaadesina5362]

Thanks @marcuscleaver. Been following you since my second year, EU law. Now doing my finals and trust law. You're a gem.

[@chijiokeattamah4763]

Your videos have been of great help. I would like to be like you in the nearest future :). Thank you.

[@yuryan5034]

Thank you so much; survived a trust exam today

[@buttaz3000]

Online?

[@dylanoreilly3834]

My main man, Mr Big Dick himself, Marcus Cleaver. Thanks for all the helpful guidance videos you've made - absolute god send. If I pass my trusts exam I'll send you a £20 pizza hut voucher (other restaurants are available, let me know your preference). thanks big poppa x

[@marcuscleaver]

I like how you capitalised the 'B' and 'D'. Really emphasises the point. If I were marking your exam you would pass on that ground alone.

[@lolaadesina5362]

@@marcuscleaver 😀

[@niffyjay]

Oh thank you for this video. This is one of my exam topic next month. It came at the right time. Please, can you do video on proprietary Estoppel and Ownership of a family home.

[@yingzhuzhou2168]

Thank you so much for your video!!! Making things so clear with great examples!

[@kingdaniel2521]

Thank you!

[@AnujVelankar]

Excellent video. thanks. Could you explain about what is described as "reverse tracing"? If the trustee pays for a loan on his house or even a credit card bill for his diamond necklace, how does that work for tracing.

[@er4469]

thank you for this video

[@wycliffokiamba7654]

well illustration

[@2808babiegurl]

Hi Marcus can you explain what is the difference between breach of trust and the breach of fiduciary duty?

[@gilly7394]

Would tracing apply to help determine the extent of account to profit?

[@moniqueendt6673]

If a trustee benefits one beneficiary with benefits ie for the beneficiaries business but not the other. And will not be transparent about it. Is this a breach. Especially when the other beneficiary is dishonest and has their name on the trust account.

[@abigailmunro8809]

Hi Marcus, how does Clayton's first in first out rule apply if there are two innocent parties money and the wrong doers money all mixed into one? As the wrong doers money was in their first does theirs come out first? But what if it was beneficial one of the innocent parties money came out first as the property purchased then went on to increase in value? Thank you!

[@lasthacker6471]

A is the beneficiary of a trust. B is trustee . B uses £20,000 of the trust money to pay a debt she owes to C. After the transfer, C has £30,000 in her bank account. C uses £5,000 to invest in shares which double in value and another £5,000 to pay off debts. So if we apply First in, first out rule. Party A's money would be C account right? like 20k in C account, so how would we claim.

[@luccicramer6384]

What will happen if a fiduciary unlawfully invested into a property which has now increased in value and is worth alot more. Can the other company claim for the original amount of money he invested in or will they be entitled to the new value of the property?

[@aoifeoleary8152]

My favourite bit is at the end..... Byeeeeeeeeeeeeeeeeeeeeeee :D

[@helenewebster9462]

Ivy Denise Hubbard-Mason and Late Sister Faye Webster and Culprits.

[@timothystarks5053]

U look so young to be so smart....wow...how... U explain things very well...this applies in the Americas too right?

[@marcuscleaver]

Not necessarily. English law is quite unique!

[@timothystarks5053]

Thank you...

[@jasminebailey5121]

Hi Marcus, I just wanted to know as i am likely to have a problem question on tracing. I have been looking at past papers and the most recent being (2018) there was a question on tracing in which a trustee took from two different trust funds, there are several figures which shows the trustee has taken money from both funds; However the trustee then ends up being bankrupt, the question asks to advise beneficiaries.. your video mentioned if the person goes bankrupt then the funds are lost? which makes me a bit confused how would I tackle a question like such in a exam if the funds are lost and nothing to trace? I'm not sure would type of answer would be expected in this question? Many thanks :)

[@marcuscleaver]

So it is definitely a concern because following bankruptcy there might be nothing to trace back for the beneficiaries. However assets of the trustee might be distributed to people to whom s/he owes money to and this is where tracing has an advantage because it is a *proprietary* remedy and therefore the beneficiaries would have priority over other unsecured creditors who might be making a claim.

[@jasminebailey5121]

@@marcuscleaver Thank you for the prompt response! So in this case the assets may be distributed & (traced) from the money used from the trust funds? As the question does not speak about any other creditors there are just various figures of where the trustee has spent her money (such as purchase of care and how the value has increased, gift to a friend who knew it was from a trust fund). Thank you once again :)

[@marcuscleaver]

So remember to be careful about the type of property and how the money was spent. Something like care is intangible (like my holiday example in the video) so cannot be traced but a gift certainly can be subject to a proprietary claim and the friend may be liable for assisting a breach.

[@jasminebailey5121]

@@marcuscleaver Thank you very much Marcus for the help i appreciate it. I have been watching your videos since the start of my uni & now I am in my final year. your videos have helped a lot. And I have a better understanding of this now. Thanks again! :)

[@tuffnellsparcelexpress8569]

should a tracing claimant be able to claim part of the increased value of a mixed fund

[@flyingfish5604]

Marcus, I've just been looking at Jasmine Trust v Wells & Hind 2007, a case which was brought over 20 after the event - where invalidly appointed trustees were acting in breach of trust. How did it get around the six year rule? Many thanks

[@marcuscleaver]

Well I believe that case is one of professional negligence against the solicitors who drew up the trust instrument rather than breach of trust but there are exceptions to the six year rule such as in cases of fraud.

[@flyingfish5604]

Hi Marcus, what affect does limitation have on a breach of trust ? Many thanks

[@marcuscleaver]

There is a six year time limit from the date of the breach --- s. 21(3)Limitation Act 1980.

[@tuffnellsparcelexpress8569]

should an innocent volunteer be forced to return trust property

[@helenewebster9462]

Ivy forced and manipulated Abriona to quick claims her portion of Mom's home 3224 Celt Dr. Memphis TN.

[@steffikittle1930]

MARCUS DO YOU HAVE A PROMISSORY ESTOPPEL VIDEO

[@marcuscleaver]

YOU CAN CHECK OUT THE END OF THE VIDEO ON CONSIDERATION IN CONTRACT LAW kzbin.info/www/bejne/aWmrdZiOmLuDgZo WHY ARE WE SHOUTING THOUGH????

[@kurious0bserver]

@@marcuscleaverHi Marcus. Could you please tell me what you comprehend by the term 'capitis diminutio maxima' and how, if at all, this relates to legal and lawful status, standing and jurisdiction, in terms of written language styles and glossed text. Hope that makes sense? Not to worry if it doesn't...

[@Owlmon]

I think your speaking of Frank O'Collins Cannon law from one-heaven and not the Vatican...

[@flyingfish5604]

Hi Marcus, with regards to a six year time limit in professional negligence cases, how were proceedings issued in the Jasmine Trust case some 20 years later? Many thanks