Wills, Trusts & Estates Prof Blog

Article: Introduction of trusts into the Civil Code of the Republic of Moldova: the Decisive Role of the DCFR

Octavian Cazac recently published an article entitled, Introduction of trusts into the Civil Code of the Republic of Moldova: the Decisive Role of the DCFR, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the article:

On 1 March 2019 the Moldovan Civil Code (adopted back in 2002) was considerably modernized by way of a Law to Modernize the Civil Code NO. 133 dated 15 November 2018. Most of its 1,624 articles were amended and some extra 1,000 articles were introduced.
One of the new legal institutions so introduced was Book 3, Title IV on trusts. The Moldovan drafters decided to adopt the model rules suggested in the DCFR to a degree of 95%. For a legislative drafter, the DCFR comes off as a well thought off soft law instrument, with a detailed commentary and insightful comparative notes, all useful for explaining it to drafters and to the legal community. This made it easy for the Moldovan drafters to take decisions. Sometimes policy choices had to be adapted to be more in line with the terminology and civil law tradition prevailing in Moldova.

Article: Justifying Anglo-American Trusts Law

Ying Khai Liew recently published an article entitled, Justifying Anglo-American Trusts Law, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

Is the existence of trusts law within Anglo-American law justified? The literature to date does not provide a satisfactory answer. Situating the doctrinal features of trusts law within the liberal tradition of political morality, this paper suggests that trusts law is justified because it enhances personal autonomy in a unique way. It is comprehensively autonomy-enhancing, with express, constructive, and resulting trusts each playing a unique role in achieving this aim. Thus, the law provides a facility for property owners to unilaterally deal with their own property (express trusts), allows individuals the freedom to enlist others in their pursuit of their goals (some constructive trusts), and ensures that only conclusive choices have long-lasting legal effects (other constructive trusts and resulting trusts).

Article: Private Purpose Trusts and the Re Denley Trust 50 Years On

Alec J. Morris recently published an article entitled, Private Purpose Trusts and the Re Denley Trust 50 Years On, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

This article will set out the law of private purpose trusts within England and Wales, and provide a critique on the current state of the law. Concomitantly, it will re-examine Re Denley in light of these considerations to establish to what extent, if any, its ostensible departure from the orthodoxy can be justified. Finally, the article will go on to consider possible recognised, alternate methods which could have been employed in Re Denley to achieve the same ends, thus avoiding the creation of this novel, controversial type of trust.

Article: Constructive Trusts and Discretion in Australia: Taking Stock

Ying Khai Liew recently published an article entitled, Constructive Trusts and Discretion in Australia: Taking Stock, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

In Australia, it is often thought that the decision whether to impose a constructive trust invariably attracts the exercise of remedial discretion. This paper argues that, in reality, the exercise of discretion is highly circumscribed. Further, where such discretion is exercised, it is useful further to distinguish between cases where judges take into account factors affecting justice inter partes, and those where judges also take third party considerations into account. The latter sort of discretion has, to date, only been exercised systemically in one factual scenario. This revelation provides reason to reflect on the status of certain High Court dicta, the relevance of the ‘institutional’/ ‘remedial’ constructive trust dichotomy, and the relationship between rights and remedies.

Settlor’s self-settled trust liable for his debts post-death

Recently, the Massachusetts Supreme Judicial Court held that a "Settlor's irrevocable trust which he had established for his own sole lifetime benefit could be attached after his death to pay his debts for his pre-death offenses." 

The grim and terrifying facts of De Prins v. Michaeles will leave you with chills. Two neighbor couples in Arizona ended up in litigation over water rights. After one of the couples won the dispute, the wife of the other couple committed suicide. Shortly after, the surviving spouse created an irrevocable trust for his sole lifetime benefit, in which he placed most of his assets. What happened next is horrific. 

Within just a few months after creating the trust, the surviving spouse murdered his two neighbors and then committed suicide the next day. 

The Court then had to decide whether the son of the married couple could collect his wrongful death settlement ($750,000) out of the murder's irrevocable trust. 

The Court decided in the affirmative. Using section 505 of the Uniform Trust Code, "a creditor can reach the maximum amount of the trust that can be distributed to or for the Settlor's benefit." Under the trust terms, the settlor could have reached the entire trust during his lifetime. Therefore, the Court concluded that the entire trust is subject to attachment, especially because the Settlor committed the murders before his death, at which time he had full access to the trust. 

The Court also mentioned that it would not be equitable to subject the trust's assets to claims during the Settlor's lifetime but avail the trust to protections from creditor claims after the Settlor's death. 

Also, the Court also found that the establishment and funding of the trust and the murders committed by the Settlor appeared to be all parts of one single plan. 

See Settlor’s self-settled trust liable for his debts post-death, Dentons, April 14, 2021. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Article: The Transformation of Japanese Trust Law and Practice: Historical Contexts and Future Challenges

Masayuki Tamara recently published an article entitled, The Transformation of Japanese Trust Law and Practice: Historical Contexts and Future Challenges, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.

Japan is one of the earliest civil law jurisdictions that introduced common law trust by statute. The Trust Act of 1922 was enacted as Japan’s first comprehensive trust legislation. Since then, trust has been used mostly for commercial purposes. Today, commercial trust is a zillion yen industry.

The new Trust Act, which was introduced in 2006 to replace the 1922 Act, reform was primarily motivated by the desire to increase flexibility of trust law to meet the needs of the increasingly complex commercial trust practices. Nevertheless, the 2006 Act contained several provisions that expressly authorize the use of trusts for succession planning. With the rapid aging of the Japanese society, the past decade has seen growing interests in what are commonly known as ‘family trusts,’ where the settlor looks to his family or friends to serve as trustee to manage his or family assets or oversee succession.

This paper will proceed as follows. Part I will provide historical overview of Japanese trust practices, and introduce some of the major commercial uses of trusts. Part II will discuss the recent rise of family trusts and some of the issues that they brought about. Against the historical background, Part III will attempt a doctrinal exposition of some of the major doctrine of trust law, with some speculation on what changes might be visible on the horizon. Part IV will look at some of the challenges that Japanese trust practice is facing in cross-border contexts.

Article: Introductory Chapter: 'Asia-Pacific Trusts Law: Theory and Practice in Context'.

Ying Khai Liew and Matthew Harding recently published an article entitled, Introduction, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article.

We organised the inaugural meeting of the ‘Asia-Pacific Trusts Law’ project in December 2019 at the Melbourne Law School, University of Melbourne. The symposium brought together lawyers and academics from the 17 jurisdictions of the Asia-Pacific region with the highest nominal GDP according to the International Monetary Fund. The jurisdictions are (from highest GDP to lowest): China, Japan, India, South Korea, Australia, Indonesia, Taiwan, Thailand, Hong Kong, Malaysia, Singapore, the Philippines, Bangladesh, Pakistan, Vietnam, New Zealand, and Sri Lanka. The presenters were asked to focus on trusts law questions and issues in their respective jurisdictions. To these 17 presentations were added one presentation about ‘offshore’ jurisdictions in the South Pacific (the Cook Islands, Niue, Western Samoa), and another on private international law issues as they relate to trusts law in the region. This book builds on those presentations to provide the first in a series of edited collections discussing trusts law in the Asia-Pacific region.

Pennsylvania Supreme Court: Trust Beneficiaries Can Examine Trustee’s Attorney’s Billing Records If Trust Is Paying Fees

In In Re Estate of McAleer, the Pennsylvania Supreme Court granted review to determine "whether the attorney–client privilege and the work product doctrine may be invoked by a trustee to prevent disclosure to a beneficiary of communications between the trustee and counsel pertaining to attorney fees expended from the trust corpus." 

The Court says no, if the trust is paying for the trustee's attorney's fees. 

William McAleer ("Trustee") is the sole trustee of a revocable trust that was created by his father, who is now deceased. The Trust was created for the benefit of the Trustee and his two stepbrothers. 

In 2014, the Trustee filed a first and partial accounting of the Trust. The Trustee retained two separate law firms to respond to his stepbrother's objections to the accounting. The probate court dismissed the objections following an evidentiary hearing. 

The Trustee's filings in Pennsylvania court indicated that about $124,000 had been expended from the trust for attorney's fees and costs through December 2015. Trustee's stepbrothers filed a petition for special relief to "determine the reasonableness of those expenses." 

In April 2016, Trustee filed a second and final accounting, which were also objected to by his stepbrothers. Trustee argued that he was never under any obligation to provide his stepbrothers with copies of legal invoices because they were protected by attorney–client privilege. 

The Pennsylvania court ordered the Trustee to forward unreacted attorney's fee billing invoices to his stepbrothers within 30 days. Trustee disclosed the trustee invoices but filed an interlocutory appeal in regard to the attorney invoices. 

The court explained that a party seeking to assert privilege must first set forth facts to establish that the privilege has been properly invoked.

The court concluded that the Trustee failed to present facts establishing the privilege. 

The Pennsylvania Supreme Court stated in its decision that the attorney–client privilege is not absolute. Further, when the interests protected by the privilege "conflict with weightier obligations, the former must yield to the latter." The Court asserted that this case was one in which this conflicting duty was present. 

Ultimately, the Court held that the fiduciary duty to furnish trust-related information to beneficiaries outweighed the asserted attorney–client privilege. 

See Pennsylvania Supreme Court: Trust Beneficiaries Can Examine Trustee’s Attorney’s Billing Records If Trust Is Paying Fees, Probate Stars, April 13, 2021. 

Article: Regulating Egoism in Perpetuity

John Picton recently published an article entitled, Regulating Egoism in Perpetuity, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

While ordinary trusts are time-limited, the charitable foundation lasts forever. It is, in consequence, a perpetual legal vehicle through which a donor might seek to egoistically project her character and values into the future after her death. Unfortunately, that self-serving drive leads to bad charity, causing waste, as it crowds out higher social utility – or altruistic – uses of capital. Through attention to the concept of egoism, as it has developed in contemporary donative economics (‘egoistic theory’),this chapter explores the nature of the motivation to create perpetual foundations, and, flowing from that theorisation, it then critically develops a policy justification for the protection of the donor’s plans (plan-protection), alongside development of a legal-conceptual method for the utility-orientated reform of foundations.

Article: To Good Purpose: Non-Charitable Purpose Trusts for the Specific Purpose of Holding Shares in Perpetuity in Singapore

Terence Yeo and Victoria Liu recently published an article entitled, To Good Purpose: Non-Charitable Purpose Trusts for the Specific Purpose of Holding Shares in Perpetuity in Singapore, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article:

This article considers the issue of whether Singapore should amend its trust laws to allow for non-charitable purpose trusts (NCPTs) for the specific purpose of holding company shares in perpetuity. The authors argue that such trusts should be allowed for two reasons. First, NCPTs in general should not be regarded as repugnant to the trust concept. Secondly, the practical advantages of allowing non-charitable trusts in a limited fashion outweigh the disadvantages. The article concludes by proposing possible reforms to the Singapore trust legislation.