Mistaking the Trust
Hong Kong Law Journal, Vol. 40, p. 747, 2011
29 Pages Posted: 14 Nov 2010 Last revised: 4 Dec 2013
Date Written: November 6, 2010
Abstract
In this paper the author explores a number of misapprehensions concerning common law trusts, under three headings. The first is “misusing trusts,” in which he describes situations in which a failure to appreciate the juridical nature of the trust relationship can lead to the breakdown of carefully planned transactional structures. In the second, “mischaracterizing trusts,” he describes how legislatures, especially in Canada, have frequently treated the common law trust as if it were a person or an entity, with unfortunate results. The third is “misappropriating trusts,” in which he describes an opposite and more recent development in US law, namely a decision to label certain corporations as trusts. In his conclusion, the author appraises the significance of all of these misapprehensions and the problems to which they may lead, and offers some positive suggestions as to how they can be addressed.
Keywords: Trusts, Legal Personality, Legislation, Comparative Law
JEL Classification: K11, K12, K19
Suggested Citation: Suggested Citation