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