Trust Ordinance Essay

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Question:
Compare and contrast the laws relating to the validity of trustees’ exemption clauses before and after the coming into force of the Trust Law (Amendment) Ordinance 2013 (Ord. No. 13 of 2013).

The Trustee Ordinance (Cap 29) (TO) and Accumulation Ordinance (Cap 257) (PAO) which were enacted in 1934 and 1970 respectively, was reformed into The Hong Kong Legislative Council passed the Trust Law (Amendment) Bill on 17 July 2013 and enacted from 1, December, 2013.

The trust ordinance refers to a relationship created at the direction of an individual, in which one or more persons hold the individual's property subject to certain duties to use and protect it for the benefit of others. Individuals may control the distribution of their property during their
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The ordinance after reformed provides a degree of protection to beneficiaries in such exemption clauses may not create a trustee from liability for fraud, misconduct or gross negligence or otherwise such clauses will be void. The problem of the initial Trust Ordinance is that the Trust duties are obligations contained in the trust instrument or imposed by law, which must be carried out by the trustees. If the trustees fail to carry out their duties, it will be counted as a breach of trust and the trust beneficiaries (subject to the existence of an exemption clause) may take action to recover any loss caused to the trust by the trustees’ failure. The relatively unrestricted nature of trustees’ liability for breach of trust has resulted in the use of common form clauses in trust instruments which exclude or restrict that liability. This terms of such clauses in early trust instruments were fairly narrow and they were strictly construed against

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