Definition of a trustee de son tort
Where someone is not appointed as a trustee but takes it upon themselves to act as such and interferes with the administration of the trust by possessing and administering trust property, they can be held responsible for any losses the trust suffers as if they were a regularly appointed trustee.
Such a person is also known as a trustee de son tort (a trustee of his own wrong), which in Taylor v Davies (1920), was described as Viscount Cave as those who:
‘Though not originally trustees, had taken upon themselves the custody and administration of property on behalf of others; and though sometimes referred to as constructive trustees, they were, in fact, actual trustees, though not so named.’
Liability of a trustee de son tort
To be held liable, a trustee de son tort does not have to receive the trust property for their own use, and it is not necessary to show that they acted dishonestly; liability will arise even if they acted with good intentions. It is the assumption of control followed by conduct in breach of trust which is key (Life Association of Scotland v Siddal (1961)).
The degree and scope of the liability for loss which attaches to a trustee de son tort is the same as that which would arise for a properly appointed express trustee. As Lord Esher MR put it in Soar v Ashwell (1893):
‘Where a person has assumed, either with or without consent, to act as a trustee of money or other property, ie, to act in a fiduciary relation with regard to it, and has in consequence been in possession of or has exercised command or control over such money or property, a Court of Equity will impose upon him all the liabilities of an express trustee, and will class him with and will call him an express trustee of an express trust.’
Therefore, if the trustee de son tort wrongfully disposes of the trust property, they will be liable to refund to the trust the amount they have transferred. A trustee de son tort who has trust property in their possession – or property which can be shown to correspond to the original trust property – the trust can legally demand that the property be returned to the trust.
Powers of a trustee de son tort
Although a trustee de son tort is given all the liability of an express trustee, they do not have the powers of a properly appointed trustee. As Mann J stated in Jasmine Trustees Ltd v Wells & Hind (2007):
‘The status of a trustee de son tort is limited. He will be liable for breach of trust much as a properly appointed trustee would be but the doctrine is more about liabilities than anything else. The trustee de son tort will be obliged to hold the property for, and to account to, the beneficiaries, but on the other side of the coin will not have the powers of the trustee conferred by the settlement… It would be contrary to principle to allow such a person to arrogate powers to himself by virtue of his “intermeddling”, even if that intermeddling is innocent’.