Powers of Trustees - Administrative Powers - Power to Invest

9 important questions on Powers of Trustees - Administrative Powers - Power to Invest

Development of Power to Invest: Trustee Act 1925

Trustees have a power to invest and a duty to safeguard and invest trust property. Under the Trustee Act 1925, trustees were severely restricted in their powers of investment; they could onlyinvest in fixed-interest investments (eg government bonds and gilts) but not in stocks and shares. This policyprotected the capital value of the fund but failed to take into account the effects of inflation and also the growing market in investments and investment products.

Development of Power to Invest: Trustee Investments Act 1961

Although this position was relaxed by the Trustee Investments Act 1961, the restrictions were still considered too draconian and were commonly excluded by express provision in trust instruments.

Development of Power to Invest: Trustees Act 2000

This embraced themodern portfolio theory, which encourages the investor to balance growth and risk across the entire portfolio, and gave trustees a ‘general power of investment’. The Act applies to all trustees generally (not just trustees of land) and also to personal representatives administering an estate, subject to appropriate modifications (s.35 TA 2000).
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Section 3 TA 2000: General Power of Investment

Subject to the provisions of this Part, a trustee may make any kind of investment that he could make if he were absolutely entitled to the assets of the trust.

***This does not mean that trustees can necessarily invest in anything. They still owe a duty of care and skill.

Section 7 TA 2000: Application of Power of Investment

The general power of investment applies to most trusts, even those that were settled before 2001, when the Act came into force.

Section 6 TA 2000: Restriction on Power of Investment

This general power of investment is additional to any express powers but is also subject to express provision in the instrument or subordinate legislation.


In other words, the general power can be expanded, restricted or excluded by the trust instrument or subordinate legislation.

Non-Application of Power of Investment

  • Section 36(3) TA 2000: Trustees of pension schemes
  • Section 37(1) TA 2000: Authorised unit trusts
  • Section 38 TA 2000: Charitable trusts who are managing common investment or common deposit schemes

Section 8(1) TA 2000: Special Provision i.r.o Land

A trustee may acquire freehold or leasehold land in the United Kingdom -
(a) as an investment
(b) for occupation by a beneficiary
(c) for any other reason.

Section 8(3) TA 2000: Special Provision i.r.o Land

For the purpose of exercising his functions as a trustee, a trustee who acquires land under this section has all the powers of an absolute owner in relation to the land.

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