The overriding question when a court is asked to remove a trustee is whether or not the conduct of the trustee imperils the trust property or its proper administration. The decisive consideration is the welfare of the beneficiaries and the proper administration of the trust and the trust property. Mere friction or enmity between a trustee and the beneficiaries will not in itself be adequate reason for removal of the trustee from office.
A trust is not a legal person. It is a legal institution in which the trustee, subject to public supervision by the Master of the Supreme Court, holds or administers properties separately from his or her own for the benefit of others or the furtherance of a charitable or other purpose. It is an accumulation of assets and liabilities constituting a trust estate separate from that of the trustees.
A trustee acts in a fiduciary position.
Trustees must act with the care, diligence and skill reasonably expected of a person who manages the affairs of another. A trustee is a person acting in a fiduciary position and must not expose the trust to any business risks (this position may be different in a business trust established to pursue a business venture).
A court only has the power to vary a trust deed in circumstances where the founder of the trust did not contemplate or foresee a situation which hampers the achievement of the objects of the founder, or prejudices the interests of the beneficiaries or is in conflict with the public interest. It is not otherwise competent for a court to exercise the statutory power but there may be other ways of achieving a variation not discussed in this case.
The case in which these principles were re-emphasised is Gowar v Gowar. The facts are not important. On the particular facts the court found that the applicants had not discharged the onus of proving that trustees should be removed or that the trusts should be terminated.
