Author: Elizabeth Heaney
Published: 1 August 2022
Pages: 28

Introduction

Trust litigation appears to be on the rise. A key question for trustees in all trust litigation is: How to pay for it?

The starting point is that trustees are personally liable for all costs relating to the subject trust including legal costs. However, subject to certain conditions, trustees have a right either in the trust deed, by statute or in equity to be indemnified for those costs from the trust.

This paper discusses the scope of that indemnity and how trustees may avail themselves of it.

Content outline

• Trustees under the Trusts Act 2019 and the Trustee Act 1956
• Beddoe orders and prospective costs orders
• Sources of the trustee’s indemnity
• Indemnities under the trust deed or deed of retirement or removal of trustee
• Statutory indemnities under s 38(2) of the 1956 Act and s 81 & 82 of the 2019 Act
• Power of the court in respect of the trustee’s indemnity
• The touchstone
• Factors relevant to recovering under the indemnity
• Trustee’s conduct in litigation