Niamh Herrett and Joseph de Lacey of Farrer & Co have prepared an in-depth article, “Guardian Trust revisited”, published in Trusts & Trustees, Volume 29, Issue 2, March 2023.

They examine the rationale and scope of the Guardian Trust principle, together with the jurisdiction to grant a “put up or shut up” order in circumstances where a third party repeatedly threatens (but refuses to issue) a claim to trust assets.

As they conclude: “The trustee’s ultimate duty is to distribute the property. Whilst they should rightly be weary and mindful of the risk of personal liability under the Guardian Trust principle, and indeed remain accountable and liable to those of whom they in fact hold the trust property, they should not do nothing. They cannot allow the trust to be paralysed. In such a predicament the trustee’s hands are not tied, and they may, and should, seek directions for a “put up or shut up” order.”

Niamh and Joseph's article can be read here (behind a paywall).