The First Three Duties

Augustine Birrell QC in his classic work “The Duties and Liabilities of Trustees” summarises the first three duties as acquaintance, remembrance and obedience.

The first three duties are:

  • (i) Acquiring a knowledge of the terms of the trust;
  • (ii) Remembering the terms of the trust; and
  • (iii) Obeying the terms of the trust.
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    Augustine Birrell states:

    “The third duty of a Trustee is to adhere to the terms of the trust in all things great and small, important and seemingly unimportant.”

    This passage was cited with approval by the High Court of Australia in Youyang Pty Ltd v Minter Ellision Morris and Fletcher [2003] HCA 15; (2003) 212 CLR at 498.

    A transcript of the High Court case can be found here.

    The High Court stated at [33]:

    Perhaps the most important duty of a trustee is to obey the terms of the trust.

    The High Court continued at [33]:

    The rigour of the rule, as Augustine Birrell QC put it, that it is the duty of a trustee “to adhere to the terms of his trust in all things great and small, important, and seemingly unimportant” was alleviated in England by s 3 of the Judicial Trustees Act 1896 (UK), shortly after Birrell gave his lectures. In Victoria, s 67 of the Trustee Act 1958 (Vic) empowered the Supreme Court to relieve from personal liability trustees who had acted in breach of trust but who had done so “honestly and reasonably” and who “ought fairly to be excused for the breach” {Ref: Partridge v Equity Trustees Executors and Agency Co Ltd (1947) 75 CLR 149 at 164‑165.}


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    This tab updated on 3 June 2015