Power of a Trustee

Trusts of Land are dealt with under Section 18 of the Land and Conveyancing Law Reform Act 2009.

In order for a Trust to be valid, there must be “three certainties”:

1. Certainty of intention.  It is required that there is a clear manifest intention to create a Trust.
   It is imperative that any language creating a Trust whether it be in a Deed or a Will, leaves no discretion as to the intention to set up the Trust.
2. The certainty of the subject.  It must be clear and concise as to what is the subject matter of the Trust.  This is broken down into two questions:
• What property will be the subject of the Trust; and
• What interest in the property will the beneficiaries take.
3. Certainty of objects.  It must be clear and concise as to who the beneficiary is under the Trust or the Will.

As Trustees are given huge responsibility in looking after the land and property for the beneficiaries, they are obligated to carry out certain duties.

Some of these specific duties are as follows:

1. A duty to collect and distribute assets.  A Trustee must check the state of the property in a Trust and collect any assets which are part of the Trust.
2. They may preserve the value of the fund and distribute the Trust property as instructed under the Trust instrument.
3. A duty to keep accounts and information.
4. A duty to invest in order to preserve the value of the fund in a Trust and to get the best benefit for the beneficiaries.
5. Crucially, a Trustee is to act impartially.