Duties Of Trustees Research Articles

NZ Law Commission--proposal for trust reform

The New Zealand Law Commission, after a long deliberation, has released its proposals for the reform of New Zealand's Trust law. This is not the last word, as submissions were invited to those proposals, and the Commission's final recommendations are expected in the next few weeks. The summary below represents the proposals of the Commission, not its final report or recommendations. 1. ‘Trust’ will become a defined term in the new legislation. The core concepts employed in the definition are the ‘enforcer principle’ of Morice v Bishop of Durham and the ‘three certainties’ outlined in Knight v Knight. 2. Trustee duties will be divided into three categories: The mandatory conduct duties will be: 3. There needs to be some clarity as to the Commission’s proposals concerning the permissible scope of limitation or exemption of trustee liability clauses in trusts. This...

Statement of Matthew L. M. Fletcher, Michigan State University College of Law and Indigenous Law and Policy Center before the Secretarial Commission on Indian Trust Administration and Reform

I propose three recommendations. Mind you, I am a law professor that has moved away from the day-to-day practice of Indian law, so these are big-picture recommendations: 1. Statutory Recognition of a General Trust Obligation; 2. Statutory Mandate of Consultation and Consent Requirements in Indian Affairs; 3. Renunciation of the Guardian-Ward Relationship.I make these recommendations based on my experience (limited as it may be so far) as Reporter of the Restatement, Third, the Law of American Indians. The American Law Institute is careful to limit its restatement projects to blackletter “restatements” of law. In our first meeting, I learned that to refer to the relationship between Indians and tribes and United States as a “trust responsibility,” “trust obligation,” or “trust duty” is a very contestable reference. Since responsibilities, obligations, and duties are enforceable by a court, to refer to a federal responsibility that is not generally enforceable in court is controversial at best.Moreover, I hope the United States could incorporate many if not all of the operative, substantive provisions of the United Nations Declaration of the Rights of Indigenous Peoples. I focus here on the consultation and consent requirements that form the structure of the Declaration.

The Public Trust in Wildlife

The public trust doctrine, derived from ancient property principles, is thought to mostly apply to navigable waters and related land resources. The doctrine supplies a mediating force to claims of both private ownership and unfettered government discretion over these resources, vesting the state with trust responsibility to ensure that the use of these resources promotes long-term sustainability. A related doctrine-sovereign ownership of wildlife-is also an ancient public property doctrine inherited from England State ownership of wildlife has long defeated private ownership claims and enabled states to enact and implement wildlife conservation regulations. This Article claims that these two doctrines should be merged and that state sovereign ownership of wildlife means that wildlife-like navigable waters-is held in trust for the public and must be managed for long-term sustainable use by future generations. Merging the doctrines would mean that state ownership would not only give states the authority to manage their wildlife populations, but also the duty to do so, and would equip members of the public with standing to enforce the states' trust duties in court. This Article shows that the public trust in wildlife has already been employed in California and several other states and suggests that it deserves more widespread judicial recognition, particularly since-as the Authors demonstrate-no fewer than forty-eight states have used trust or trust-like language in describing state authority to manage wildlife. Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:Calibri,sans-serif; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin;}

Handle with care! An exploration of the potential risks associated with the publication and summative usage of student evaluation of teaching (SET) results

This article presents a synthesis of previous ideas relating to student evaluation of teaching (SET) results in higher education institutions (HEIs), with particular focus upon possible validity issues and matters that HEI decision-makers should consider prior to interpreting survey results and using them summatively. Furthermore, the research explores relevant legal issues (namely, defamation, breach of the duty to take reasonable care for an employee's welfare, breach of the duty of trust and confidence, breach of the right to privacy and, if the lecturer is forced to resign as a consequence of such infringements, constructive dismissal) that decision-makers, in UK HEIs, should appreciate if survey results are widely published or used to inform employment decisions. The resulting recommendations should enable HEIs to avoid litigation and/or a deterioration of the employer–employee relationship of trust whilst still allowing SETs to be used for quality enhancement purposes. The research is timely as most studies to date have been completed in the context of the US or Australian education systems. Additionally, current major changes in the UK higher education sector, such as the increase in the use of the student as customer metaphor and potential job losses, mean that decision-makers need to be cautious if utilising SET results summatively.

The Implied Duty of Trust and Confidence: Are the Parties’ Intentions Relevant when Determining if there is a Breach? Can the Duty Be Owed to Two Parties at the Same Time? Tullett Prebon plc and others v BGC Brokers LP and others

The Implied Duty of Trust and Confidence: Are the Parties’ Intentions Relevant when Determining if there is a Breach? Can the Duty Be Owed to Two Parties at the Same Time? <i>Tullett Prebon plc and others v BGC Brokers LP and others</i>

Socially Responsible Investment and Fiduciary Duty: Putting the Freshfields Report into Perspective

A critical issue for the future growth and impact of socially responsible investment (SRI) is whether institutional investors are legally permitted to engage in it – in particular whether it is compatible with the fiduciary duties of trustees. An ambitious report from the United Nations Environment Programme’s Finance Initiative (UNEP FI), commonly referred to as the ‘Freshfields report’, has recently given rise to considerable optimism on this issue among proponents of SRI. The present article puts the arguments of the Freshfields report into some further both empirical and critical perspective, however, and suggests that its findings do not call for very much optimism. The general argument is that while the understanding of fiduciary duty outlined by the Freshfields report seems to allow institutional investors to at least sometimes take some social or environmental considerations into account, the support it gives for SRI is notably contingent and, furthermore, it rules out exactly the kind of SRI which proponents of social responsibility and environmental sustainability should hold in highest regard – proactive cases and socially effective investment strategies. If SRI is to become an important force for corporate social responsibility through its adoption by institutional investors, then, it is suggested that legal reform is needed.

Non-excludable trustee duties

Non-excludable trustee duties

The cupboard was bare: what is a trustee's duty, when he has a good claim to recover trust assets but no funding?

The cupboard was bare: what is a trustee's duty, when he has a good claim to recover trust assets but no funding?

Settlor control--what kind of a problem is it?

Trustee duties are defined when the trust is created, and the trustee controls management and distribution with the powers given to the trustee by the trust instrument. If the settlor or a third party has the power to consent to or direct trustee decisions, is there a trust at all? Trust law is equivocal. It is a question of degree. Family law courts to the contrary want to know what is really going on, and have refused to acknowledge such a trust. In New Zealand, Harrison v Harrison is the latest instance of this.

Mediation: important preliminary questions: trustee's duties in trust disputes and trustee's powers of compromise

Before trustees can proceed to mediation, they need to know whether they have a duty to resist the claim that is being mediated. Before entering into mediation, trustees need to understand its duties in relation to the claim, and the scope of compromise. Applications for blessing are two ways of protecting to enter into a compromise. These are considered in this article.

The Doctor-Patient Relationship

(Reprinted with permission from Simon RI, Shuman DW: The doctor-patient relationship, in Clinical Manual of Psychiatry and Law. Arlington VA, American Psychiatric Publishing Inc. 2007; 17–36)

South Africa

During the 12 months under review, no new legislation was enacted in South Africa which specifically regulates the duties of trustees or the administration of trusts. Court cases of interest decided during the year were as follows: From a tax and estate planning perspective, the exempt portion of donations made by individuals has been increased to ZAR100,000 per individual per annum which means that an individual may now make a donation up to that amount without paying any donations tax. In addition, the threshold at which estate duty is levied in respect of the deceased estates of individuals, has been increased to ZAR3,500,000. No such measures exist. No specific protection will be granted to defeat claims from outside South Africa that a trust is...

Trustee duties to beneficiaries in the exercise of dispositive discretion: the legal framework

Trustee duties to beneficiaries in the exercise of dispositive discretion: the legal framework

The Relational Principle of Trust and Confidence

This article seeks to explain why, in terms of Iain Macneil's relational theory of contract, the implied mutual duty of trust and confidence can be described as a quintessentially relational norm. The role played by the duty in the development of a relational approach to variation of the employment contract is examined. The potential for the trust duty to become a relational principle informing the content of the employment contract is explored. The impact of litigation based on the trust duty in creating a relational approach to employees’ contractual remedies at common law, which have traditionally been dominated by the notice rule, is assessed. Finally, the potential for there to develop a relational principle of trust and confidence capable of, to some extent, unifying the contractual, statutory and tortious elements of the law of the employment relationship is examined.

Environmental Justice in Indian Country: Dumpsite Remediation on the Swinomish Indian Reservation

The U.S. Environmental Protection Agency (EPA) defines environmental justice as the "fair treatment for people of all races, cultures, and incomes, regarding the development of environmental laws, regulations, and policies." The last decade has focused considerable national attention on the environmental pollution inequity that persists among the nation's poorest communities. Despite these environmental justice efforts, poor communities continue to face adverse environmental conditions. For the more than 550 Native American communities, the struggle to attain environmental justice is more than a matter of enforcing national laws equitably; it is also a matter of a federal trust duty for the protection of Indian lands and natural resources, honoring a promise that Native American homelands would forever be sustainable. Equally important is the federal promise to assist tribes in managing their reservation environments under their reserved powers of self-government, an attribute that most distinguishes tribes from other communities. The PM Northwest, Inc. (PMNW) dumpsite is located within the boundaries of the Swinomish Indian Reservation in Washington State. Between approximately 1958 and 1970, PMNW contracted with local oil refineries to dispose of hazardous wastes from their operations at the reservation dumpsite. Almost two decades would pass before the Swinomish tribe was able to persuade EPA that a cleanup action under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was warranted. This article reviews the enduring struggle to achieve Indian environmental justice in the Swinomish homeland, a process that was dependent upon the development of the tribe's political and environmental management capacity as well as EPA's eventual acknowledgement that Indian environmental justice is integrally linked to its federal trust responsibility.

Supervising Charities: A Scottish-Civilian Alternative

* Lecturer in Law and member of the Charity Law Research Unit, University of Dundee. The author would like to thank Professor Pamela Ferguson and Mr Stuart Cross of the University of Dundee for their generous assistance with this article. A. INTRODUCTION B. COMMON LAW AND CIVILIAN APPROACHES DISTINGUISHED C. COMMON LAW APPROACH: ENGLISH SYSTEM (1) Advantages of charitable status (2) English defi nition of “charitable” (3) Fiscal signifi cance of defi nition and proposed reform (4) Fundraising provisions (5) Legal form (6) Charity trustee duties (7) CIO in Civilian terms D. THE 2005 ACT: ADOPTION OF COMMON LAW APPROACH (1) Advantages of charitable status (2) Separation of UK “charitable” tax relief from Scottish charitable status (3) Scottish charity test (4) Fundraising provisions (5) Legal form and charity trustee duties (6) Unsatisfactory features of the new system summarised E. SCOTTISH-CIVILIAN ALTERNATIVE: SCOTTISH ELEMENT (1) Common law defi nition of “public purposes” (2) “Public purposes” as gateway criterion to supervisory system (3) Concomitant general advantages and resource implications F. SCOTTISH-CIVILIAN ALTERNATIVE: CIVILIAN ELEMENT (1) Foundation-association distinction in Scots common law (2) Public trust metamorphosed into foundation (3) Common law corporation constituted for public objects (4) Common law corporation metamorphosed into public association G. CONCLUSION

Public Trusts

Public, as distinct from charitable, trusts were authoritatively recognised in 1827, when the House of Lords determined that the permanent basis of equitable jurisdiction protected ‘public money’ from unlawful application, on the same basis as charitable funds were protected. These trusts made the relevant public functionaries subject to equitable remedies, but the remedies were displaced from equitable practice by jurisdictional fusion and by administrative audit surcharges. In the twentieth century they survived unrecognised in the ambiguously phrased ‘local authority fiduciary duty to ratepayers’. Recently, public trusts have again been implicitly acknowledged, and the distinctive remedy of personal liability to make good loss arising from misapplication has been applied. However the right to litigate is confined to current fund‐holders in fulfilment of their protective trust duty and to the Attorney General in the general public interest in countering unlawful appropriations of public money.

Compensation for Psychological Injuries Arising from Dismissal

This paper will seek to establish that a duty of trust and confidence of the kind envisaged by Lord Nicholls in Malik v. Bank of Credit and Commerce International SA (Malik) ought not be implied at law into contracts of employment, so as to allow compensation for employees who suffer psychological injuries as a result of the manner in which they are dismissed.

Clinical governance: assuring the sacred duty of trust to patients

PurposeTo hammer home that clinical governance is the defining heart and inspiration of quality in the NHS and to expand on its implementation by all concerned.Design/methodology/approachLists the ideal aspects and attributes of clinical governance.FindingsFinds that clinical governance is a sine qua non and mandatory lever for achieving quality in the NHS and that whatever changes are necessary must be fully carried out.Originality/valueArguably, coming as it does from the top of the hierarchy, this posits the most soul‐searching advocacy of clinical governance's importance for the NHS so far presented.

The role of an NHS Board in assuring the quality of clinically governed care and the duty of trust to patients

PurposeTo provide an overview of the change to NHS Clinical Governance Support Team's Board Development Programme.Design/methodology/approachThe background to the programme, the methods adopted by the Board Team and lessons learned are outlined. Commitment and active support at Board and senior levels are known to be essential for organisational change and, in order to help translate aims into strategic priorities and to implement these into improved services, the Clinical Governance Board Support Team was formed in 2000 as part of the overall NHS Clinical Governance Support Team (CGST). Its members provide advice and support to NHS personnel who are involved in improvements to health care services.FindingsThe team worked initially with Boards of acute NHS Trusts and later with Primary Care, Ambulance and Mental Health Trusts. Among the lessons learned from their own work and the increasing body of research‐based evidence is the importance of the leadership role of the Board in fostering a positive culture of change, enthusing and empowering staff. Other factors are the effectiveness of communication with external organisations, scrutiny of all points of contact with users of the services and involvement of users – patients and carers – at all stages. The Team evolved during the programme, strengthening its clinical base and introducing patients and carers as associates. In order to meet demand and increase capacity of the Team, learning materials have been developed and these and their experiences widely disseminated. An example of success is demonstrated by the progress made by a pilot cohort of Primary Care Trusts.Originality/valueThis review summarises the aims, objectives and progress of the work of the Board Development Programme.