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6 - Trustees, Fiduciaries and Fetters

from Part I

Published online by Cambridge University Press:  19 April 2018

Richard C. Nolan
Affiliation:
University of York
Kelvin F. K. Low
Affiliation:
City University of Hong Kong
Tang Hang Wu
Affiliation:
Singapore Management University
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Summary

"This chapter looks at the scope of any ‘fetter’ doctrine in relation to decisions or discretions of trustees or other fiduciaries. A “fetter” in a contract between trustees and third parties or a policy or agreement between trustees and beneficiaries can be a good thing for a trust. A blanket “no fetter” rule, if it existed, would cause problems for all parties – trustees, beneficiaries and third parties. This chapter looks at the meaning of a “no fetter” rules, the older cases and four more modern cases (Thorby, Cabra Estates, Firkin-Flood and ATC) that significantly limit the width of any fetter ‘rule’. It then considers the modern position, whether public law can be used as a guide and the position of outside parties. The chapter concludes that a fetter rule or implication is no more than a description of the need to comply with the terms of a relevant power or discretion (eg for the right person to exercise it at the “right” time) combined with a duty on trustees when exercising a power to have considered the relevant factors – ie in light of the relevant facts and circumstances at that time. This is similar to the rule in public law."
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Publisher: Cambridge University Press
Print publication year: 2018

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