Trusts

• Author: Stephen G.A. Pitel/Nicholas S. Rafferty
• Profession: Faculty of Law, University of Western Ontario/Faculty of Law, University of Calgary
• Pages: 370-379

370

CHAP TER 20

TRUSTS

A. I NTRODUC TION

In general terms, a tr ust is an equitable obligation under which a trust-

ee holds property for the benef‌it of a benef‌iciary. The three main ty pes

of trust are expre ss, constructive, and re sulting. The second and third

of these type s tend to arise by operation of law, and can be seen as

part of the law of remedies. Accordingly, the law applicable to resulti ng

and constructive tr usts is usua lly the law under which they are held

to exist —in other words, the law applicable to the subst antive obliga-

tion giving ri se to the trust. In contrast, expres s trusts a rise as a res ult

of intentional acts taken by a per son to create the trust. They are not

remedies, arising in response to some situation, but are inste ad legal

arrangements usual ly based on consent. This chapter considers the law

applicable to express tru sts. An express trust can b e either a testament-

ary tru st, created by a testator or testat rix 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 h as been active

in the area of choice of law for trusts. In 1985 it drafted the Conven-

tion on the Law Applicable to Trusts and on their Recognition and it came

into force in 1992.1 The convention has been ratif‌ied by fewer than

20 countries including Australia, Canada, a nd the United Kingdom.

1 (1984) 23 I.L.M. 1388 [Hague Convention]. See the Expl anatory Report on the

convention by Alfred von Overbeck at (1986) 25 I.L.M. 593. A very useful