Contentious trusts counsel.
Barristers for breach of trust claims, trustee removal, beneficiary disputes, Beddoe applications and trust construction, instructed directly or through your solicitor.
Trust disputes combine technical law with fractured relationships. The parties are often family members, long standing trustees and beneficiaries who no longer speak. The sums involved are frequently substantial, the documents dense, and the emotional temperature high. Good contentious trusts counsel bring forensic rigour to the accounts and judgment to the people.
Clerk&Counsel introduces independent barristers, regulated by the Bar Standards Board, who act for trustees, beneficiaries, protectors and personal representatives in trust disputes of all sizes. We match the case to counsel with genuine chancery experience, and we agree fees in writing before any work begins.
Instructions come from solicitors and from clients under the Public Access scheme. Early advice is particularly valuable in trust work because the costs rules are unusual: in some cases costs come out of the trust fund, in others they follow the event, and knowing which applies shapes strategy from day one.
Trust disputes our counsel take on.
- Breach of trust claims: misapplication of funds, failure to account, imprudent investment and self dealing.
- Removal and substitution of trustees under the court's inherent jurisdiction and the statutory powers.
- Construction, validity and rectification of trust instruments, including mistake and forgery.
- Beneficiary claims for accounts, information and the trust documents.
- Beddoe applications and applications for directions by trustees.
- Tracing claims and proprietary remedies against trustees and third parties.
- Knowing receipt and dishonest assistance claims against recipients and advisers.
- Variation of Trusts Act 1958 applications on behalf of minors and unborn beneficiaries.
- Resulting and constructive trust claims over family and investment property.
Acting for trustees under attack.
Trustees facing hostile beneficiaries need advice on two fronts: the merits of the complaints against them, and their own costs protection. A trustee who has acted honestly and reasonably is generally entitled to an indemnity from the trust fund for costs properly incurred, but that protection can be lost by misconduct or by litigating unreasonably.
Counsel will advise on the strength of the claims, the availability of exoneration under the trust deed or section 61 of the Trustee Act 1925, and whether a Beddoe application or an early offer is the safer course. Getting that advice early is usually far cheaper than defending a removal application on the back foot.
Acting for beneficiaries.
Beneficiaries often come to us having been refused accounts, fobbed off with partial information or told that the trust fund has been exhausted without explanation. The starting point is usually a formal request for information; where that fails, proceedings for an account and, where appropriate, for removal.
Where trust property has been dissipated, counsel will advise on tracing and on claims against third parties who received or assisted with the misapplication. Freezing orders and proprietary injunctions are available in urgent cases to prevent further loss while the claim is prepared.
Fee structure and costs treatment.
Written advice on merits and options is quoted as a fixed fee against the trust documents and accounts. Applications and hearings are quoted per stage, with trials as a brief fee plus refreshers. Where mediation is appropriate, and it usually is, counsel can represent you at the mediation or, if you prefer, act as the mediator.
Clerk&Counsel's service fee of up to £150 depending on urgency is shown separately from counsel's professional fee before you decide whether to proceed. There is no charge to make an enquiry.
Specialist areas within this practice.
Tell us about the trust.
Send the trust deed, any accounts you hold and a short note of the problem. We will come back with counsel options and a fee basis for an initial advice.
Common questions.
What is contentious trusts work?
It covers disputes arising from trusts: claims by beneficiaries against trustees for breach of trust, applications to remove or replace trustees, disputes about the construction or validity of trust documents, claims to trace trust property, and applications by trustees for directions or protection. Cases are heard in the Chancery Division or the County Court chancery list.
Can a trustee be removed?
Yes. The court has an inherent jurisdiction to remove trustees, and there are statutory powers under the Trustee Act 1925 and the Trusts of Land and Appointment of Trustees Act 1996. Removal is most likely where the trustee has committed a serious breach, is in an unmanageable conflict of interest, is incapacitated or has become uncontactable, or where relations have broken down so badly that the trust cannot be administered properly.
What can a beneficiary do if a trustee will not account?
A beneficiary is entitled to trust accounts and information about the trust fund. If a trustee refuses, the beneficiary can apply to court for an order that the trustee account, and in serious cases for the trustee's removal. Where trust property has been misapplied, the beneficiary can claim compensation or trace the property into the hands of the trustee or third parties.
What is a Beddoe application?
A Beddoe application is made by trustees seeking the court's blessing for a proposed course of action, typically bringing or defending litigation on behalf of the trust. If the order is made, the trustee's costs of that litigation are properly payable from the trust fund. Trustees who litigate without a Beddoe order risk bearing the costs personally if their decision is later criticised.
How are contentious trust cases funded?
Advice and drafting are usually quoted as fixed fees. Contested hearings are quoted as a brief fee plus refreshers. Trustees may be entitled to take their costs from the trust fund, subject to the rules on proper expenses; beneficiaries sometimes recover costs from the fund where their claim has benefited the trust as a whole. Counsel will explain the likely costs treatment at the first advice.