This Trustees 'Need to KNow' Guide provides general guidance of the law at the date of publication. Specialist advice should also be sought.
Updated July 2020.
What is a fiduciary?
A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal”.
Bristol and West Building Society v Mothew 
All trustees have fiduciary duties such that they are placed in a position, which demands loyalty and good faith to the beneficiary.
Why have fiduciary duties?
Fiduciary duties are required in order to prevent unwanted conduct on the part of the fiduciary.
Fiduciary duties are separate to and additional to a trustee’s duties. All trustees are fiduciaries but not all fiduciaries are trustees. There is no overlap.
A trustee’s specific fiduciary duties towards a beneficiary include not to profit from the trust and avoiding a conflict of interests.
Can breach of a fiduciary duty be avoided?
A fiduciary may be able to avoid liability for breach of fiduciary duty by seeking the informed consent of his principal (i.e. that the beneficiary/beneficiaries was/were aware and authorised the action taken by the trustee).
What are the ramifications for a fiduciary acting in breach of duty?
Any action taken in breach of a fiduciary duty can be set aside even if there has been no resulting loss. A proprietary remedy enabling the claimant to assert rights against property in the in the defendant’s possession may also available.
How can we help?
We act for trustees, executors, personal representatives and for individuals claiming against estates, trustees or other parties. We also often advise on complex and cross-jurisdictional issues, and regularly work alongside other intermediaries based offshore. Our team is recognised for our expertise in this field by the legal directories: The Legal 500 and Chambers & Partners. If you have any questions arising from this Need to Know please do not hesitate to contact our Wills, Trusts and Inheritance Disputes Team.
Latest blogs & news
Mental Health Awareness Week, with its focus this year on the theme of loneliness, is a timely reminder of our duty to protect loved ones and elderly clients who might be vulnerable to financial abuse and undue influence.
Funerals and feuding families – What happens if there is a dispute over arrangements for a loved one’s body?
The death of a loved one is an incredibly sad and difficult time for any family, and in the vast majority of cases those closest to the deceased are able to arrange an appropriate “send-off” which gives everyone the opportunity to pay their respects and say goodbye. Unfortunately however, there may be situations where the relevant parties cannot agree on the funeral arrangements, or what should happen to the deceased’s body. This blog considers who is legally responsible for deciding what happens to the body and how the Court has approached disputes in recent cases.
When a family member or loved one dies, sometimes the terms of their will, if they made one during their lifetime, can come as a surprise to those who survive them. For example the will might include unexpected beneficiaries, or certain beneficiaries might receive a greater or lesser share of the estate than others. Under the laws of England and Wales, a person has the freedom to leave their estate to whoever they choose and there is no legal obligation to provide for any particular family member or other individual. Therefore, whilst family members or individuals might regard the terms of the will as unfair or unexpected, the law will generally uphold the wishes of a testator set out in their will, if it has been validly made.
The Court of Appeal has recently handed down its judgment in the case of Hirachand v Hirachand, concerning an appeal against an order made in May 2020 in proceedings brought by Sheila Hirachand for provision from the estate of Navinchandra Hirachand, her late father, under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”).
Actor Terry Jones’ children challenge his Will - but does suffering from dementia mean you can’t make a valid Will?
Several stories have recently been published about the ‘legal battle’ commenced in the High Court relating to the estate of actor Terry Jones, who was well known and loved for his role in Monty Python and who died in January 2020. His adult children from his first marriage have reportedly commenced proceedings against their father’s estate and his second wife Anna Söderström (who is thought to be the main beneficiary of the estate), claiming that the Will their father made in 2016 is invalid because he lacked capacity when he made it. As a matter of law, a Will made by someone who lacks the required mental capacity at the time they made the Will is not valid.
Death does not release an individual from their debts and liabilities, nor does it allow transactions made to loved ones to escape challenge. This is so regardless of whether the transactions were made with the intention to defraud creditors.
Alzheimer’s disease, the most common form of dementia, has been in the spotlight recently given a recent scientific breakthrough with the US approving the first new Alzheimer’s drug in 20 years. Light has also been shed on dementia and assessing testamentary capacity in the recent case of Hughes v Pritchard  EWHC 1580 Ch. In this case, Mr Hughes, who suffered from moderately severe dementia was nevertheless deemed to have capacity at the time of amending his will by his GP, a view supported by a joint medical expert later instructed in the case. Despite this, his will was overturned by the judge on the basis that he did not have the requisite capacity to make the changes to his previous will, which were much more significant than the medical professionals, and indeed Mr Hughes, had appreciated.
Matthew & Others v Sedman & Others  UKSC 19
The Supreme Court recently handed down a judgment dealing with time limits in a “midnight deadline” case. The claim was brought by new trustees and beneficiaries of a will trust against the former professional trustees. The claim involved allegations of negligence against the former trustees, along with breach of trust and breach of contract.
Financial abuse of older and vulnerable adults is sadly becoming more prevalent
My previous blog examined whether Kenny Goss, the ex-partner of George Michael, may be entitled to a provision from the late singer’s estate, notwithstanding the fact that their relationship had broken down in 2009 (seven years prior to Mr Michael’s death). It was reported at the time that Mr Goss was seeking an award of £15,000 per month on the basis that Mr Michael had been financially maintaining Mr Goss at the time of his death. Pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, Mr Goss made an application for reasonable financial provision from Mr Michael’s estate because he had not been left anything in the singer’s will.
In recent years the courts have seen a significant number of claims under the 1975 Act bought by adult children. This week it has been widely reported that the two adult daughters of Tony Shearer, a high profile banker and finance governor of a well-known public school, have failed in their attempt to bring a claim against their late father’s £2.2 million estate. Mr Shearer made no provision in his estate for his daughters leaving the majority of his wealth to his second wife.
Examining the impact of Sofer v Swiss Independent Trustees SA on practitioners in England and Wales.
This article was first published by STEP, December 2020: Katherine Pymont, 'Moments of Truth', Trust Quarterly Review (Vol18 Iss4), pp.36-41
Two recent decisions relating to forged wills have highlighted what evidence will be sufficient for a court to make a finding of forgery.
This quarterly contentious trust and probate litigation update provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period October 2020 - December 2020.
Beneficiaries often have questions and concerns over how the estate of a loved one is being administered but are sometimes kept in the dark by personal representatives (PRs). Under section 25(b) of the Administration of Estates Act 1925 (AEA 1925) PRs can be required by the court to provide, on oath, a full inventory of the estate and an account of what steps they have taken to administer an estate.
The High Court has recently given judgment in the case of Knipe v The British Racing Drivers’ Motor Sport Charity and Ors  EWHC 3295 (Ch), a summary judgment application concerning the construction of a will of a deceased racing driver, Mr Barrie Williams, who had sought to make several bequests to charity but the names of the organisations had not been correctly recorded.
One of the questions we are often asked is whether an individual’s will can be amended after their death if it doesn’t reflect their intentions. This is sometimes possible under a process known as rectification, although the circumstances in which rectification is available are limited. A claim for rectification was recently considered by the court at the end of 2020 in the case of Barrett v Hammond & others.
It has been alleged that the ex-partner of George Michael, Kenny Goss, may be considering issuing a claim against the singer’s estate. Goss was excluded from the singer’s Will but purportedly claims he is entitled to a monthly allowance of £15,000 as the singer provided this monthly allowance to him before their relationship broke down in 2009.
Highly publicised matters arising in relation to the administration of the late Steve Bing’s estate in the US give rise to some interesting legal issues
Before the Family Law Reform Act 1969 (“the 1969 Act”) came into force on 1 September 1970, the common law rules of construction that a child is legitimate only if the child was born or conceived in wedlock applied when dealing with trust deeds or wills. The 1969 Act is not retrospective so difficulties may still arise in relation to trust deeds or wills settled/executed prior to that time.