Pre-Emptive Strike: Restricting Attacks on the Trust


The great American legal scholar Austin Scott, in the introduction to his seminal work on the Law of Trusts, pronounced, without a hint of qualification, that the development of the concept of the trust was one of the great creations of English common law. Indeed, some commentators would argue that the trust concept, as the significant building block in the evolution of sophisticated property law, was a major factor in propelling the world to the forefront of a highly evolved commercial system which ultimately has permitted the tremendous technological transformations occurring in our own time. These and other heady claims for the major influence of the trust may be debated but there can be little doubt that the multi-faceted use of the trust is unrivalled by almost any other property or commercial vehicle or entity.

The omnipresent use of the trust is seen in our everyday dealings and lexicon; most everyone today has variously had contact with a "trust company"; a " trust officer" a "deed of trust" a "family trust" an "executor and trustee" and numerous other entities and vehicles bearing the name trust. Given the influence and utility of the trust, one would think that most of us would be able to give at least a basic explanation of the origins of a trust and what it is. That, I suspect is not the case and even those professionals who work with trusts for their livelihood probably do not give its history or conceptualization a moment’s thought. But for those of us working in the area of trusts, it is important from time to time to step back and reflect on these issues, not only as a matter of interest, but because it ultimately is helpful for understanding the various needs of customers and clients. For example, the fact that the trust was the actual creature of the courts is important to bear in mind because it anchors the trust in the very heart of the legal, as opposed to the commercial structure. This has all kinds of implications, perhaps most generally expressed as the courts continued insistence that they have an abiding interest in the monitoring of and if necessary, intervention in the trust.

At this Conference we will be discussing the various types and uses of trusts and also some of the pitfalls which can lead to a successful attack on a trust. My comments, like those of my colleagues, will touch on these different considerations, but I also thought it useful to give a brief introduction to the history of the trust which might permit some of the more detailed discussion to be put into a larger context.

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