Execution by a Trustee de son tort

Legal Principle:

Any Trustee executing the amending Instrument must be lawfully appointed to the office of trustee.
  • Meier v Dorzan Pty Limited & Anor [2010] NSWSC 664. More details here
  • NSW Masonic Youth Property Trust v Her Majesty’s Attorney-General in the and for the State of NSW [2009] NSWSC 1301. More details here

Where a Power of Amendment requires a majority of the Trustees to consent to the proposed amendment in writing then that condition must be strictly complied with.

Edward Sugden in “A Practical Treatise of Powers” stated on page 208:

“Where the consent of any person is required to the execution of the power, that , like every other condition, must be strictly complied with {Simpson v Hornsby, Prec. Cha. 452″.

Edward Sugden also notes on page 209 referring to Lord Mordant v the Earl of Peterborough 3 Keb. 305:

“This case enforces the necessity for stating accurately in the deed executing the power, the compliance with every circumstance imposed on the execution of it.”

Edward Sugden also notes on page 210 referring to Hawkins v Kemp 3 East, 410:

“Where a person’s consent is required to the execution of a power, he cannot delegate the confidence reposed in him.”

Edward Sugden also notes on page 210 referring to Reresby v Newland, 2 p. Wms, 93:

“It appears scarcely necessary to observe, that when a trustee is authorised to consent to a revocation, he will not be guilty of a breach of trust by giving his consent accordingly, unless he acted fraudulently; nor will a court of equity control his discretion.”

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This tab updated on 31 May 2015