Chapter 4 - A new mechanism for trust disputes resolution


Another option for improving the dispute resolution of trusts is to introduce a commission or authority for trusts. This option would have a different emphasis to an ombudsman or tribunal. Its role would be primarily overseeing the trusts industry. It could provide guidelines, supervise providers of trust services and include a mediation service. It could also produce a code of conduct or standards for regulating trusts and trustees.

Kelly posited a Trust and Estate Supervision Commission based on the Charities Commission as another option for improving trusts dispute resolution. He considered that the Commission could approve probate for deceased estates, provide advice and education to trustees, investigate complaints, decide whether to release trust documents and operate an optional register of trusts. A commission could have a wider and more flexible scope than an ombudsman. It could employ investigators to consider complaints, potentially on a part-time, as needed basis.142 While a commission would be able to achieve a wider range of purposes, a trusts ombudsman or tribunal is likely to have a stronger ability to ensure trustees comply with their duties.143

Kelly Supervision of Trustees, above n 111, at 146.

Ibid, at 146−8.