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Your assignment is to prepare and submit a paper on remedies and replacements of trustees.
Your assignment is to prepare and submit a paper on remedies and replacements of trustees. A variant of this type of trust is an accumulation and maintenance trust, which is also termed as a grandchildren's trust. Its use is to benefit a particular child or children who are under a specified age, when they become entitled to the income by right and frequently to the capital also.
The trust deed, at times will give the trustees certain discretionary powers permitting them to decide as to which of the beneficiaries will receive the income or capital of the trust. The trust deed generally gives clear instructions as to the trustees' administrative powers for routinely dealing with trust property.
In our case, since, the trust deed is silent with regard to the administrative powers of the Trust the law will take its own course for proper administration of the trust. Seven years ago, Cathy took 50,000 from the trust and used it on a new kitchen and a conservatory. If the trustee becomes bankrupt or dies, or the trustee transfers assets in breach of trust then the beneficiaries have the right to claim their equitable ownership of the trust assets against the trustee's trustee in bankruptcy in other words the individual appointed by the court who takes charge of a bankrupt person's assets, or his personal representative on death, or the transferee of trust assets transferred in breach of trust. Two of Georgina's grandchildren who were alive at her death, namely Estelle, now aged 21 years and Peter, now aged 23 years came to know that the Trust property was misappropriated by Cathy. Since, seven years ago Estelle and Peter were minors and also they came to know about this fraud only recently, the limitation for claiming their rights begins from the day from which they came to know about this fraud. Hence, they can proceed against Cathy's court appointed trustee in order to recover 50,000.
In Barnes v Addy, it was held that a third party may be liable as constructive trustee if it "receives and becomes chargeable with some part of the trust property" , this is known as the first limb or knowing receipt or where they "assist with knowledge in a dishonest and fraudulent design on the part of the trustees", this is termed as the second limb or knowing assistance. which held that tracing, may provide a proprietary remedy to the plaintiff along with the personal liability of the defendant including return of property (Barnes v Addy, 1874).
The beneficiaries' interest in the trust money binds not only Cathy but also her successors in title, including volunteers who either receive trust property or its traceable proceeds. Hence the trust amounts paid to Bob by Cathy can be fully recovered at the suit of the beneficiaries. The remedy available to Estelle and Peter is that they can move the court to transfer the Tippit shares, in which Bob had invested their trust money, and hand over the painting for value to them. Bob invested the amount of 40,000, which was given by Cathy under the pretext that she had won the amount in a lottery.
Bob added 20,000 of his money to the bank account without knowing the fraud committed by Cathy. Since he is an innocent third party his liability is limited to the amounts given to him by Cathy. In 2004 Bob withdrew 20,000 and bought a painting whose value is 5,000 at present.
