- 20 Marks
Question
Explain circumstances trustee can be held personally liable for breach of trust.
(20 marks)
Answer
Trustees can be held personally liable for breach of trust in circumstances involving failure to adhere to duties, with liability joint and several, subject to defenses.
- Unauthorized investments or disposals: Investing outside authorized scope or selling without power, causing loss (e.g., speculative stocks vs. prudent ones), liable for restitution.
- Negligence in management: Failing prudent care, e.g., not diversifying, as per Speight v Gaunt (1883). In Ghana, amplified by BoG’s risk guidelines for trust funds.
- Self-dealing or conflicts: Profiting personally (Keech v Sandford (1726)), liable to account for profits.
- Failure to protect trust property: Allowing waste or not suing debtors promptly.
- Co-trustee liability: Passive trustees liable if enabling breach (Bahin v Hughes (1886)), unless acting reasonably.
- Defenses: Acting honestly/reasonably (Trustee Act relief), beneficiary consent, or limitation (6 years).
- Practical: In Ghana’s post-2019 cleanup, trustees at failed banks were liable for breaches leading to insolvencies, emphasizing compliance for profitability.
(Marks allocation: 4 marks per circumstance with explanation and case; 4 for defenses/examples.)
- Tags: Breach of trust, Circumstances, Personal liability, Trustee liability
- Level: Level 4
- Topic: Personal remedies
- Series: JULY 2020
- Uploader: Samuel Duah