Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Sunday, April 23, 2017

Article on Fiduciary Duties in Social Enterprise

Fiduciary socialAndrew S. Gold & Paul B. Miller recently published an Article entitled, Fiduciary Duties in Social Enterprise, Cambridge Handbook of Social Enterprise Law (Forthcoming 2017). Provided below is an abstract of the Article:

This chapter examines theoretical and practical issues relating to fiduciary administration in social enterprise. It argues that social enterprise often calls for fiduciary administration on a hybrid model, combining elements of service-type administration and governance-type administration. Like standard service-type situations, social enterprise calls for administration in the interests of a defined constituency (ordinarily, shareholders). However, hybridity is introduced through the commitment to general public-oriented purposes that distinguish social enterprise from conventional business organizations. We will show that, contrary to common opinion, the fiduciary hybridity found in social enterprise is neither unique nor unworkable. We will briefly discuss other examples of hybrid fiduciary relationships and institutions, and we will explain the value of hybridity and how problems attributed to it are, or may be, resolved.

April 23, 2017 in Articles, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Saturday, April 22, 2017

Article on Singapore Securities & Financial Services Regulation

Financial service regulationHans Tjio recently published an Article entitled, 25. Securities and Financial Services Regulation, 17 Singapore Academy of L. Annual Rev. (2016). Provided below is an abstract of the Article:

This is a survey of all the Singapore cases in the past year in the area of what can broadly be termed capital markets regulation (including those heard by the State Courts, given that financial regulation often creates criminal offences that are first heard there). Following convention, these can largely be further classified into the following categories: markets and exchange regulation; licensing of intermediaries and conduct of business rules; issuer regulation and securities offerings; insider trading and market abuse.

April 22, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Friday, April 21, 2017

Article on How Equity Finds Expression in the Constructive Trust

Nigeria trustKato Gogo Kingston & Mercy Oke-Chinda recently published an Article entitled, To What Extent Can Equity Find Expression in Constructive Trust Under the Nigerian Legal System?, 58 J.L., Policy & Globalization (2017). Provided below is an abstract of the Article:

The object of this paper is to examine the assertion that, constructive trust is a vital legal mechanism through which the conscience of equity finds expression. When real property is acquired in such circumstances that the legal title holder may not in good conscience keep the beneficial interest, equity makes him a trustee of the property. This treatise does not seek to provide a comprehensive philosophical analysis of constructive trust as a subject-matter however, it sets out to elucidate the landscape, growth and cogency for the imposition of constructive trust as probably a safer means by which the legal and equitable interests of the relevant parties may be protected in real and personal properties. Thus, the paper assessed the degree to which constructive trust as equitable remedy is applicable under the Nigerian legal system. Also, the paper seeks to offer viable suggestions for the improvement of the concept and applicability of constructive trust in contemporary settings.

April 21, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Article on Liability from Breach of Duty by a Superannuation Trustee

SuperannuationJoseph Charles Campbell recently published an Article entitled, Some Aspects of the Civil Liability Arising from Breach of Duty by a Superannuation Trustee, Sydney L. Sch. Research Paper No. 17/31 (2017). Provided below is an abstract of the Article:

- Under the general law the drafter of a trust deed has great freedom to decide what equitable duties the trustee will be under, subject only to the irreducible core of obligations of a trustee, and any duties imposed by state legislation that are incapable of being excluded. The drafter of a superannuation trust deed is more limited, because unexcludable statutory covenants in s 52 Superannuation Industry (Supervision) Act 1993 (Cth) (“SIS Act”) provide a minimum set of trustee’s obligations, and s 56(2) SIS Act imposes a further limit on what general law duties can be excluded.

- Section 56 SIS Act gives all superannuation trustees a right of indemnity from the assets of the trust fund even for liabilities that the trustee has incurred in breach of trust. The right of indemnity is the same for all the trustees, even though the circumstances that can sometimes justify such a right of indemnity are not the same for all trustees. An unsatisfactory consequence of the existence of the right of indemnity is that a professional indemnity insurer of the trustee would be entitled to be subrogated to that right of indemnity. Administrative powers of ASIC or APRA might deter a trustee from exercising its right of indemnity, but the criteria on which such administrative action might be taken are not articulated.

- The jurisdiction of the Superannuation Complaints Tribunal can not only result in the Tribunal making orders against a superannuation trustee, but can also give rise to an equitable duty on a trustee.

- There is considerable doubt about whether equity will require a trustee who breaches a trustee’s duty to pay compensation to an individual beneficiary for consequential financial loss, or for personal suffering that arises from the breach of a trustee’s duty. Equity will sometimes impose liability on people who are associated with a trustee’s breach, but only in quite specific types of circumstances.

- In contrast with the situation in equity, when there has been a breach of a statutory covenant section 55 SIS Act enables a trustee, a director of a corporate trustee, and a person involved in a trustee’s breach of a statutory covenant, to be held liable for all the loss or damage that anyone suffers in consequence of that breach. Persons involved in a breach of a statutory covenant will be under a statutory liability under s 55 in circumstances where they would not have had liability under the general law. The damages payable under s 55, by both trustees and persons involved, are compensation for all financial loss and personal suffering caused by the breach. These damages are likely to be larger, in some cases, than any equitable compensation that might be recoverable for the breach.

April 21, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Wednesday, April 19, 2017

Article on Attorneys Liability to Nonclients for Estate Planning Malpractice

Estate planning malpracticeKaitlyn C. Kelly recently published an Article entitled, Put Privity in the Past: A Modern Approach for Determining when Washington Attorneys Are Liable to Nonclients for Estate Planning Malpractice, 91 Wash. L. Rev. 1851 (2016). Provided below is an abstract of the Article:

Even in the best of circumstances, an estate plan may leave intended beneficiaries frustrated. Occasionally, an attorney's alleged mistake in the execution of a will or administration of a trust sparks the beneficiaries' anger. Under Washington law, it is unclear whether intended beneficiaries may sue an estate planning attorney for malpractice. Generally, an estate planning attorney's client is a testator, not a testator's intended beneficiaries; thus, the intended beneficiaries are not in privity of contract with the attorney. Rather, the only individual in privity with the accused attorney is usually deceased at the time of a malpractice lawsuit. If a strict privity rule applies, courts will leave beneficiaries with few options to hold attorneys accountable for costly mistakes in the drafting or execution of estate planning documents. On the other hand, courts will expand the scope of liability too far if they allow any nonclient to sue an estate planning attorney for malpractice.

First, this Comment traces trends in Washington estate planning malpractice law. The discussion begins with two Washington State Supreme Court decisions that suggest a balancing test, rather than a strict privity rule, defines the scope of attorney malpractice liability to nonclients. Then it analyzes two Washington State court of appeals cases that demonstrate how the balancing test still favors privity in its application. Second, this Comment weighs the strengths and weaknesses of other jurisdictions' approaches to attorney malpractice liability to nonclients. Third, it considers different scenarios in which courts may hold an estate planning attorney liable to nonclients under Washington law. Finally, this Comment recommends that courts require nonclient intended beneficiaries to exhaust Washington's will and trust reformation statute before bringing a claim against an estate planning attorney.

April 19, 2017 in Articles, Estate Planning - Generally, Malpractice | Permalink | Comments (0)

Tuesday, April 18, 2017

Article on Class Actions as Trusts

Class action trustSergio J. Campos recently published an Article entitled, The Class Action as Trust, 91 Wash. L. Rev. 1461 (2016). Provided below is an abstract of the Article:

The class action is controversial because the class attorney can litigate or settle the claims of the class members without their consent. Many scholars have turned to corporate law to address the potentially disloyal behavior of the class attorney. These scholars have used analogies to corporate law to support (1) the use of opt-out rights and (2) restrictions on class conflicts to constrain class attorneys, and the law has generally mirrored both requirements. In practice, however, both of these requirements have undermined the efficacy of the class action and prevented the class action from being used in many appropriate settings.

This Article argues that a more useful model for the class action is the trust. Unlike the shareholders of a corporation, the beneficiaries of the trust typically cannot exercise control over the trustee. Moreover, unlike the corporation, trust law facilitates the creation of trusts with conflicts among the beneficiaries. These features of the trust mirror the most controversial features of the class action.

The Article shows that both of these features are necessary to address problems of scale found in both contexts. Unlike in the corporate context, both the trust and class action contexts lack a well-developed market for managerial control which would allow beneficiaries/class members with conflicting interests to cede control to a third party with better aligned interests. In the absence of such a market, retaining control among the divided beneficiaries/class members prevents them from investing in the res/claims at the right scale.

Accordingly, trust law shows that class action requirements such as opt-out rights and class cohesion are misguided. The article concludes by applying the trust model of the class action to such class action issues as the ascertainability of class members, settlement pressure on the defendants, and cy pres awards.

April 18, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Sunday, April 16, 2017

Article on Chinese Inheritance Law

Chinese inheritance lawThomas E. Simmons recently published an Article entitled, A Chinese Inheritance, 30 Quinnipiac Pr. L.J. (2017). Provided below is an abstract of the Article:

A society's values may be discernible in its intestacy laws, the laws which govern the distribution of a decedent’s estate when there is no valid will. Upon examination, unique characteristics among competing intestacy schemes emerge. The most startling characteristic of Chinese inheritance law is its willingness to invoke judicial review of an heir’s conduct in settling upon distributions. American succession law also considers an heir’s conduct, but it does so sparingly and formalistically. Chinese conduct-based intestacy is widespread and fluid. This article contrasts American and Chinese approaches to conduct-based intestacy, identifies the underlying competing policies and values in play, and summarizes five recent Chinese judicial opinions as a way of assessing the operation of Chinese conduct-dependent intestacy.

April 16, 2017 in Articles, Estate Planning - Generally, Intestate Succession | Permalink | Comments (0)

Saturday, April 15, 2017

Article on the Proper Purpose Test for Pension Schemes

Pension schemeDavid Nigel Pollard recently published an Article entitled, Application of the Proper Purpose Test to Pension Schemes, 30 Tr. L. Int’l 159 (2016). Provided below is an abstract of the Article:

A review of the application of the proper purposes test to decisions of trustees of UK occupational pension scheme. Looking at case law dealing with the purpose of a pension trust, amendment powers, transfer powers and investment powers among others.

April 15, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Friday, April 14, 2017

Article on Evolution of the Family's Influence on Legal Succession in Romania

Legal successionMircea Dan Bob recently published an Article entitled, Family and Legal Succession in Romania - A Conclusion, 62 Studia Universitatis Babes-Bolyai 5 (2017). Provided below is an abstract of the Article:

We conducted research from October 2011 up to November 2016 on the evolution of the family concept and its influence on the legal succession order in Romania. Our scope was to provide an in depth analysis of the complex social, historical, philosophical and religious factors that worked together in modern and post‐modern Romanian civil law history, in order to evaluate the answer given by the recently enacted civil code of 2011.

The paper hereby can give an idea on the conclusions we drawn at the end of our work. It argues mainly if the new provisions are covering all the aspects drawn into practice by the family – in its traditional and recent presentations. We focus on the successive versions of the civil code’s Book dedicated to the Law of successions, part of them being authored by ourselves. We take into account the recent evolutions in the Family law and in the Law of successions of several European and non‐ European countries, with a special accent on France and the Canadian province of Québec – who deeply influenced the former and the present Romanian civil codification.

The research ends with a set of conclusions leading to de lege ferenda propositions, meant to improve the actual state of the new Romanian civil code on the emphasized subject. They are meant to satisfy the specific needs of the present day Romanian society and to keep in touch with the tendencies we drawn out of the experience of comparative law of successions.

April 14, 2017 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, April 12, 2017

Article on the Harms of Trusts to Society

Harmful trustAndres Knobel recently published an Article entitled, Trusts: Weapons of Mass Injustice? (2017). Provided below is an abstract of the Article:

This paper seeks to start a debate on the harms that trusts can inflict on societies (e.g. money laundering, corruption and tax evasion risks, potential to defraud creditors, avoid taxes, etc.), and what can be done about this. The paper takes a global perspective on the risks of secrecy, asset protection and a race to the bottom on trust regulation, and proposes global and local solutions. The paper does not address the purely internal relationships between parties to a trust (such as settlors, trustees and beneficiaries), but focuses on trusts’ impact on wider society.

April 12, 2017 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)