Rights and Remedies. Associate Professor Cameron Stewart. Appointment, retirement and removal of trustees . Only a legal person (a natural person or corporation) with the capacity to hold and deal with property can be appointed as a trustee
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Rights and Remedies
Associate Professor Cameron Stewart
Fixed and discretionary
Exhaustive non exhaustive
Tracing is thus neither a claim nor a remedy. It is merely the process by which a claimant demonstrates what has happened to his property, identifies its proceeds and the persons who have handled or received them, and justifies his claim that the proceeds can properly be regarded as representing his property. Tracing is also distinct from claiming. It identifies the traceable proceeds of the claimant’s property. It enables the claimant to substitute the traceable proceeds for the original asset as the subject matter of his claim. But it does not affect or establish his claim
For example, if $3000 from Trust A together with $2000 from Trust B were used to purchase 500 shares of equal value, 300 shares would be held in favour of Trust A and 200 shares in favour of Trust B.
It displaces the pari passu rule and states that all beneficial interests in a mixed bank account are subject to a ‘first in, first out’ rule.
Therefore the critical question is whether the assets now subject to the express trusts of the purchasers trust deed comprise any part of the policy moneys, a question which depends on the rules of tracing. If, as a result of tracing, it can be said that certain of the policy moneys are what now represent part of the assets subject to the trusts of the purchasers trust deed, then as a matter of English property law the purchasers have an absolute interest in such moneys. There is no discretion vested in the court. There is no room for any consideration whether, in the circumstances of this particular case, it is in a moral sense ‘equitable’ for the purchasers to be so entitled