Powers are conferred either by the Trust Instrument or by the Trustee act and the principal powers are as follows:

  1. Power of Sale;
  2. Partition;
  3. Delegation;
  4. Compromise;
  5. Maintenance and Advancement;
  6. Powers of appointment.

Others include the power to insure under the Trustee Act.


This is provided for under Section 13 of the Trustee Act Cap 167 however the trust instrument may also authorise trustee to sell.  In the absence of such authority the trustee must have statutory authority or alternatively must apply to court for an order of approving the sale.

The method of sale must be that which is to the best advantage of the beneficiaries.  So if the trustee applies for an order approving a sale he must state the method that will be followed either by public auction or by private treaty.  The trustee must conduct himself in the best interests of the beneficiaries to whom he is accountable.  He can sell in whole or in part.

The office of the trustee is one of confidence and therefore in general cannot be delegated.  Exceptions to the rule are that;

1.            The Trustee may now employ agents – the power to employ agents is a power to employ certain persons to perform specific tasks and this is provided for under Section 24 of the Trustee Act.  Examples are agents to take legal action and this would be advocates in our case, to write up accounts, to give advice on investments etc and the Trustee is authorised to pay for the services out of the Estate or the Trust Fund.  Nevertheless the Trustee remains personally liable for any breach in the trust although he may not be liable for the negligence of the employed agents if he has acted reasonably in relying on these qualified persons.

2.            Section 20 of the Act confers power to delegate trusts during the absence of the Trustee out of the country for periods of over 1 month.


The court has inherent power as well as power under Section 16 (f) of Cap 21 to sanction a compromise in respect of the disputed rights on application by the trustees.  Refer to Re Chapman [1954] AC 429 AND Re Downshire’s Settled Estate [1953] 1 AER 103.  the second case discusses the extent of the meaning of the word compromise and suggest that it should not be limited only to disputed rights.


This is the exercise by the Trustee of the right to designate the person or persons to take the trust property or part of the Trust property thereof.

 In the case of Turner V Turner [1984] Ch. 100  1983 2 All ER 745 trustees had exercised powers of appointment at the request of the settlor not appreciating the duty to consider the exercise of this power which attached to their office as trustees.  They merely acted on the instructions of the settlor and did not exercise their discretion.  When the appointments were challenged in court they were held to have acted in breach of trust and the appointments they had made in the years 1967 to 1971 and 1976 were held to be void.


The power of the court to order maintenance on the trustee’s application is based on the assumption that the intention to provide sensibly for the family members is paramount.

  Refer to the case of Re Downshire’s Settled Estate [1953] 1 AER 103.   The court orders maintenance in disregard of the Trust where the immediate beneficiaries have no funds for their present maintenance.  An order for maintenance will obviously resort in a variation of the beneficial interests.


This consists of the payment or application of a capital sum in order to establish a beneficiary in life or to make a permanent provision for him or for her. 

Refer to the cases of :
  • Kernot V. Hayward [1957] Ch. 528
  • Hardy V. Shaw [1975] All ER 1052.

Advancement can be on more than one occasion provided that the total amount advanced does not exceed one half of the presumptive or vested share of a particular beneficiary.  What is advanced must be brought into account at the time of distribution.


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