Publication Type

Journal Article

Version

acceptedVersion

Publication Date

1-2007

Abstract

In recent times, the courts have increasingly invoked the power to undo the adverse consequences caused by a trustee's acts in certain circumstances. The basis for such an intervention is premised on the so-called rule in Re Hastings-Bass.1 This development has generated enormous interest in terms of case law and essays from the judiciary, legal academy and practising lawyers. Commentators are divided on whether Re Hastings-Bass has a sound jurisprudential foundation. The thesis of this paper is that Re Hastings-Bass is best understood as a doctrine based on a trustee's duty to act on proper bases and not one premised on or similar to mistake, rectification or non est factum. Once this is appreciated, it is possible to determine the limits of this doctrine. Also, it will be argued in this paper that there is a conceptual independence between the duty to act on proper bases from the duty to act with due care and skill. The remedy for the latter category lies in an action in negligence and not in an application of the rule in Re Hastings-Bass. It is therefore suggested that courts should not apply the rule in Re Hastings-Bass where the trustee or the trustee's agent had acted negligently. Instead, the cost of the adverse consequences ought to be borne by the trustee or the trustee's agent via a negligence action. If this argument is accepted, then many of the cases should not have applied the rule in Re Hastings-Bass.

Keywords

Mistake, Negligence, Rectification, Trustees' powers and duties

Discipline

Commercial Law | Estates and Trusts

Publication

Trust Law International

Volume

21

Issue

2

First Page

62

Last Page

79

ISSN

0962-2624

Publisher

Reed Elsevier (UK) Ltd

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