The Liabilities of Trustees: Inaugural Address to the Scots Law Society, Edinburgh, 6th November, 1922 (Classic Reprint) - Softcover

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Excerpt from The Liabilities of Trustees: Inaugural Address to the Scots Law Society, Edinburgh, 6th November, 1922

In the first place English trustees, in cases of doubt as to what course they ought to adopt, can safeguard themselves by taking out what is called an originating summons and in that way they obtain judicial guidance on any particular question arising in the administration of the trust. More over, the procedure referred to is simple and summary and inexpensive and the trustees may be allowed expenses as be tween agent and client out of the trust estate. Consider what an advantage and what a comfort this would prove to men and women who are desirous of doing their duty as trustees but feel doubt as to how they ought to act and would like to be kept safe. They may have accepted office with no legal training and perhaps only a limited business experience and they may have no proper appreciation of the nature and degree of the care and diligence which the law expects of them or of the particular risks and liabilities to which the law sub jects them from start to finish.

Now in Scotland the Court will not administer a trust and will not advise trustees on their administration. In the words of Lord President Inglis trustees are not entitled to come to the Court for advice as to how they ought to exercise their powers. They must exercise their own discretion and if they do so rightly they will be safe (berwick, 1874, 2 R. 92; Nobles Trustees, 1912, 1230; Dunbar's Trustees, 1915, sc. Yes, but the anxiety of the trustees is that although they do what they think best it may afterwards be held that they had exercised their discretion wrongly and accordingly what trustees desire is judicial advice which will keep them safe. In many of the cases in which trustees have been held liable for breach of trust it appears that they had not expressly asked the advice of the trust solicitors and that no guidance or advice had been volunteered by the trust solicitors; while,[7.

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