Control of Trustees’ Discretions: Withering Rights

On 7 August 2025, the Obligations Group hosted a lunchtime seminar titled 'Control of Trustees’ Discretions: Withering Rights', presented by Associate Professor Kelry Loi (National University of Singapore).

The importance of the extent to which one may enforce one’s rights against another cannot be overstated. In the case of trustees, this truism is put to the test in the modern context. If, despite satisfying the formal requirements for establishing a trust, the actual ability of beneficiaries to enforce their rights against trustees are curtailed in reality, does this negative the trust? Must the prospect of beneficiary enforcement be realistic, or will notional enforceability suffice? These are real challenges gleaned, first, from substantial informational barriers erected in modern massively discretionary trusts; and secondly, from the proliferation of exemption clauses, ouster clauses or no contest clauses in modern trust documents which deter beneficiaries from challenging trustee decisions. How far can trust law accommodate settlors’ autonomy, in structuring trusts such that beneficiaries are not aware of their beneficial interests, or such that beneficiaries are unable or unwilling to bring trustees to account in court? Will such accommodation endanger the institution of the trust itself?

^{Photo by Anders Jildén on Unsplash}