Trusts
Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
Pages | 390-400 |
CHAPTER
20
TRUSTS
A.
INTRODUCTION
In
general
terms,
a
trust
is
an
equitable
obligation
under
which
a
trustee
holds
property
for
the
benefit
of
a
beneficiary.
The
three
main
types
of
trusts
are
express,
constructive,
and
resulting.
The
second
and
third
of
these
types
tend
to
arise
by
operation
of
law
and
can
be
seen
as
part
of
the
law
of
remedies.
Accordingly,
the
law
applicable
to
constructive
and
resulting
trusts
is
usually
the
law
under
which
they
are
held
to
exist
—
in
other
words,
the
law
applicable
to
the
substantive
obligation
giving
rise
to
the
trust.
In
contrast,
express
trusts
arise
as
a
result
of
intentional
acts
taken
by
a
person
to
create
the
trust.
They
are
not
rem
edies,
arising
in
response
to
some
situation:
they
are
legal
arrangements
usually
based
on
consent.
This
chapter
considers
the
law
applicable
to
express
trusts.
An
express
trust
can
be
either
a
testamentary
trust,
cre
ated
by
a
testator
or
testatrix
on
death
using
a
will,
or
an
inter
vivos
trust,
created
by
a
settlor
during
his
or
her
life.
The
Hague
Conference
on
Private
International
Law
has
been
ac
tive
in
the
area
of
choice
of
law
for
trusts.
In
1985
it
drafted
the
Con
vention
on
the
Law
Applicable
to
Trusts
and
on
Their
Recognition
and
the
convention
came
into
force
in
1992.
1
The
convention
has
been
ratified
1
23
ILM
1388
(1984)
[Hague
Convention],
See
the
Explanatory
Report
on
the
con
vention
by
Alfred
von
Overbeck
at
25
ILM
593
(1986).
A
very
useful
resource
on
the
convention
is
Jonathan
Harris,
The
Hague
Trusts
Convention:
Scope,
Appli
cation
and
Preliminary
Issues
(Oxford:
Hart,
2002).
390
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