How can a trustee limit its liability?

By Amy Benest

Both statute and common law principles allow a trustee to invoke the court’s supervisory jurisdiction of a trust by making administrative trust applications to seek the court’s approval. The categories of such applications were first set out in an unreported judgment of Robert Walker J (as he then was) sitting in chambers. The principles of that decision were then recited in Public Trustee v Cooper [2001] WTLR 901.

For those who have considerable experience in the trust industry, making a Public Trustee v Cooper application may be a well-trodden path. Trustees of discretionary settlements will often be faced with difficult situations, such as weighing up competing beneficial interests or considering an external pressure that may threaten the trust funds, requiring the substantial reorganisation of trust assets, or settling a claim. The court recognises that trustees will sometimes need to invoke the court’s supervision in order to resolve such situations. As set out in Public Trustee v Cooper, there are four categories of administrative application…

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