Contents

Chapter 11
Other powers of the court under the
Trustee Act

Section 35 – Protection against creditors by means of advertising

Proposal
P49 New legislation should retain the provision in section 35 of the Trustee Act 1956 that protects trustees from liability where they advertise and give notice to potential creditors before distributing property under a trust. The following changes should be made to the advertising requirements in the provision:
(a)Trustees should be required to give notice advertising for claims in a manner that is likely to bring the notice to the attention of potential claimants.
(b)Trustees may seek advice from the Public Trust and rely on that advice where there is doubt as to what notice advertising for claims is appropriate.
(c)Trustees may seek directions from the court, as an alternative to seeking advice from the Public Trust, where they are uncertain about what notice advertising for claims is necessary.
Please give us your views on this proposal.

11.68The court has a power to give directions under section 35(4) where there is doubt as to what advertisements should be published by a trustee giving notice advertising for claims before distributing property under a trust. Where the trustees obtain and comply with such directions they are protected against personal liability.

11.69The options for modernising the approach to advertising and giving notice that were considered in relation to section 76 were also considered in relation to section 35. The points made by submitters on the issue of advertising in paragraphs [11.64] to [11.65] apply equally here. We consider that the same approach as has already been proposed for modernising the advertising requirements in section 76 should be taken here also.