INTRODUCTION
The law of trustees’ obligations is built around an enduring contradiction. On the one hand, trustees are subject to a heavy burden of duties. Though breach of those duties does not always lead to compensatory liability, trustees are also subject to a heavy burden of liabilities. On the other hand, drafters of trust instruments often exclude large parts of either or both burdens. In other cases, trustees’ duties are not excluded but undermined, as by subjecting trustees to the directions of a non-fiduciary protector. The law of many common law jurisdictions accepts much of this practice of exclusion and undermining, rendering much of the two burdens default law. Twenty-five years ago, leading trust jurists started referring to the mandatory elements of trusteeship, of trustee obligations or of trust law as an ‘irreducible core’. This article focuses on the irreducible core of trustee obligations, leaving aside other parts of the law of trusts. The topic encapsulates a dilemma fundamental to the law of trusts: how much of trustees’ burdens, hereinafter discussed as one composite burden, should be subject to contract-style tailoring and elimination, and how much of that burden should be inescapable? …
€ (Westlaw)
Adam Hofri-Winogradow, ‘The irreducible cores of trustee obligations’ (2023) 139 Law Quarterly Review (Apr) 311-336.
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