The paper aims to discuss the comprehensive and significant findings of the topic that is whether the duties of constructive trustee have been equated with the expressive trustee. The paper will highlight both the trustees in a detailed discussion. This discussion will bring differentiation between both aspects. The paper will also aim to distinguish circumstances surrounding the statutory direction of courts when imposing a constructive trust upon a trustee de son tort.
Constructive trusts are not confined to one definition. They are comprised of all trusts recognized and enforced by the courts that either resulting or express trusts. Express trusts are trusts are a design of the real intention of the parties however constructive trusts are ‘invitum’ (against the will or consent of the party) Constructive trusts are usually the result of gross violation of a special relationship and are inferred upon by the courts against the erroneous party; because of their fraud, breach or deceitful act.
Because the trustee who has the 'ownership in law has a relationship with the assets limited to the purpose of the trust and has a number of obligations on the recipient that end to fill its position. It has a position of obligations rather than rights. Even if at the end the trust has been emptied of value in the performance of various obligations, the trustee is found with nothing. Normally, the trust relationship is free of charge so the trustee does not receive any compensation.
The trust can arise as a result of an express declaration of the court; it can be Implicit, obtainable from conduct conclusive or through interpretation, as in the case already mentioned of the constructive trust. A constructive trust is an equitable trust imposed by the courts on the grounds surrounding ‘unconscionable conduct,’ without any due reference to the implied or presumed intention of the person(s). It is imposed by operation of the law where “the assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principles”
Unlike constructive trusts express trusts are created by an express act or deceleration. With real intention of the acting party’s property transferred to the trust is a patrimony separate from that of the person creating the trust (the grantor) and beneficiaries. These assets are held and administered by one or more trustees specified in the act and to the benefit of the beneficiaries. For tax purposes, the trust is treated as a person. As such, it must file a separate income of the individual (the grantor or beneficiaries). An express trust can be created to be managed by a trustee on behalf of beneficiaries designated. There is more than one circumstance surrounding the creation of an express or constructive trust but this paper will refer to primarily proprietary and the duties of a trustee surrounding circumstances of trustee de son tort.
Duties of Express Trustee
The trustee duties are exhaustive and onerous; they have to manage the power and the duty the trust assets in accordance with the Trust provisions and imposed upon it by the law to particular obligations to use or dispose of. The trustee is the assumption of the obligation under the Trust Deed to the formal owner of the trust property.
The obligation of the trustee is to administer the trust assets in accordance with the provisions of Trust, its main obligation. This commitment, the actions of the trustee is to align and measure. The trustee has on its activities therefore stored a complete account. Does the trust assets under or lost, it is the trustee; the beneficiary can sometimes require the return of appropriate assets to the trust. The fact that the founder retains certain rights and powers, or that the trustee may himself have rights as a beneficiary has, is the existence of a trust are not necessarily opposed.
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