Wednesday, September 20, 2023
Lucas Clover Alcolea (University of Otago) published Policy over Doctrine: A Brief History of US Trust Law, ACTEC Law Journal, 2023. Provided below is the Abstract:
US trust law is unique because whereas in English law the settlor drops out of the picture once he has created the trust, in the US the settlor’s intentions remain paramount. This fundamental difference in turn permits the recognition of spendthrift trusts, whereby the beneficial interest cannot be alienated, in the US whereas in England such trusts are generally invalid. Similarly, whereas in English law the beneficiaries of absolute trusts, and on occasion discretionary trusts, can collectively implode the trust by forcing the trustee to convey the trust fund to them via a Saunders v Vautier application, this is generally not possible in the US. It is suggested that this key difference results from the fact that US law is, at heart, policy-based rather than doctrinal whereas the opposite is true for English law.