We regularly advise clients on bringing and defending claims against trustees, personal representatives, professional trustees and other officers acting in a fiduciary capacity for breach of trust, breach of fiduciary duty and professional negligence.

Those who act as trustees commit themselves to significant responsibility when they are appointed and are obliged to apply their care and skill to ensure that a trust's assets are preserved, and, in some cases, enhanced, always proceeding in the best interests of the trust's beneficiaries.

A trustee may have failed to honour their express duties within the relevant trust instrument and various other duties established by the courts. There are extensive ways in which a breach of trust and/or breach of fiduciary duty can occur, such as situations in which a trustee:

Distributes trust assets to a beneficiary who is not named within the trust instrument;
Fails to invest the trust fund in a manner consistent with their express and statutory powers;
Seeks to profit from the trust personally, whether indirectly or directly, by, for example, divesting trust assets to a business owned or controlled by the trustee; or
Is negligent and/or reckless in their administration of the trust fund to the detriment of the beneficiaries.

If a client wishes to remove a trustee or personal representative from their role, we are able to advise on this process and on any associated removal applications.

Experience

We acted for clients in their claim over a substantial freehold site in East London, where ownership was disputed. There was a large mosque on the site and the dispute arose due to a division in the Tablighi Jamaat movement in Islam with which the mosque was associated. The claim was for recognition by the claimants (by way of a charitable trust) of their ownership of the land.

Appeal reference: Mohammed v Daji [2024] EWCA Civ 1247

We acted for trustees in relation to a claim against them for breach of trust and/or breach of fiduciary duty based on the assertion that they transferred shares in a development site purportedly held on trust for the claimant to a third party. The development site subsequently obtained planning permission for a large residential development and the claimant claimed that their shares would have been worth over £1.5million. We defended the claim on the basis that our client had not acted in breach of trust and that the transfer was effected with the knowledge of the claimant.

There are circumstances in which a trustee or protector should be removed from their role. This may arise where a trustee has acted in breach of trust, has lost capacity, has a conflict of interest, has failed to act, or where the relationship between the trustee and the beneficiaries has irretrievably broken down.

Applications for the removal of trustees may be made under:

Section 41 of the Trustee Act 1925 where the court may appoint a new trustee in place of one who is unfit or incapable;
Section 19 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) which allows beneficiaries who are all of full age and capacity to direct the removal and replacement of a trustee;
The court’s inherent jurisdiction where the court will act in the interests of the beneficiaries and the proper administration of the trust.

The removal of a protector is governed by the terms of the trust deed and, where relevant, the law of the offshore jurisdiction in which the trust is established. We have experience in both onshore and offshore trustee and protector removal proceedings, including in jurisdictions such as Jersey, Guernsey, the Cayman Islands, the BVI and Bermuda.

We are also able to advise on the appointment of replacement trustees or protectors following a successful removal application, including seeking the appointment of a judicial trustee or the Public Trustee in appropriate cases.