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Title: ‘Electing between equitable remedies’.
Date of publication worldwide: 16.12.2021.
Abstract
‘Carl Islam explains the operation of the principle of election, and concludes that in a breach of fiduciary duty claim, before an election between equitable remedies must be made by the claimant beneficiary, the judge should first consider the duties and powers of the defendant fiduciary. Because that exercise is inseparable from determination of breach, the author further submits that the exercise should be undertaken by the judge at the same time, i.e. at trial, before making a finding about breach.’
At the end, I also discuss Executors’ and Trustees’ duties in relation to land, and conclude that under English law,
‘the duties of executors, trustees, and trustees of land are the same in relation to land, see Byrnes v Kendle [2011] HCA 26, (2011) 243 CLR 253, at paragraphs 67 and 119, which was cited in Brudenell-Bruce v. Moore [2014] EWHC 3679 (Ch), by Mr Justice Newey at 88.’
I also explain that because of s.2 of the Trusts Of Land And Appointment of Trustees Act 1996 (‘Abolition of doctrine of conversion’), an executor is not under a duty (i.e. any legal compulsion), to sell land.
‘Trusts & Trustees‘ is a rigorously peer reviewed journal published by Oxford University.
‘Trusts & Trustees is the leading international journal on trust law and practice, and the official journal of the International Academy of Estate and Trust Law. The most significant source of information in its field, the journal is essential for all trusts practitioners and lawyers.’ About | Trusts & Trustees | Oxford Academic (oup.com)