This article analyses and argues for the continued relevance of the maxim—Equity will not perfect an imperfect gift for three reasons. First, it is principally sound. Centuries of historical development should not be discarded due to its arbitrary application. Second, the deviations from the maxim were justified. The cases which were decided wrongly have subsequently been accounted for. Third, common law jurisdictions including Singapore, Malaysia and the United Kingdom still apply Milroy v Lord, as proven by empirical analysis. Last, this article proposes a new three-step test to prevent further arbitrary application: (i) As a starting point, Equity will not perfect an imperfect gift. (ii) However, it may do so where the settlor has objectively done all he could to transfer legal title. (iii) If step (ii) conflicts with step (i), Equity looks to the substance, not the form, considering the facts of each case.
本文分析并论证了“公平不会完善不完美的礼物”这一格言的持续相关性，原因有三。首先，它基本上是合理的。几个世纪的历史发展不应该因为它的任意应用而被抛弃。其次，偏离这一准则是合理的。后来对判决错误的案件进行了解释。第三，实证分析证明，新加坡、马来西亚和英国等普通法司法管辖区仍适用Milroy v Lord案。最后，本文提出了一个新的三步检验，以防止进一步的任意应用:(1)作为起点，衡平法不会完善一个不完美的礼物。但是，如果调解人客观上已尽其所能转让法定所有权，则可以这样做。(iii)如果步骤(ii)与步骤(i)相冲突，衡平法在考虑每个案件的事实时，关注的是实质而不是形式。
{"title":"Beware the ‘gifted’ Trojan horse: analysing the equitable maxim—‘Equity will not perfect an imperfect gift’","authors":"Edwin Teong Ying Keat","doi":"10.1093/TANDT/TTAB053","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB053","url":null,"abstract":"\u0000 This article analyses and argues for the continued relevance of the maxim—Equity will not perfect an imperfect gift for three reasons. First, it is principally sound. Centuries of historical development should not be discarded due to its arbitrary application. Second, the deviations from the maxim were justified. The cases which were decided wrongly have subsequently been accounted for. Third, common law jurisdictions including Singapore, Malaysia and the United Kingdom still apply Milroy v Lord, as proven by empirical analysis. Last, this article proposes a new three-step test to prevent further arbitrary application: (i) As a starting point, Equity will not perfect an imperfect gift. (ii) However, it may do so where the settlor has objectively done all he could to transfer legal title. (iii) If step (ii) conflicts with step (i), Equity looks to the substance, not the form, considering the facts of each case.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48586920","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Whilst the parallels between ancient Roman fideicommissa and English trusts are well-documented, the author argues that insufficient attention has been given to their fundamental differences. This is particularly evident in the different methodologies employed by each system to protect endowments from potential attack by impatient beneficiaries. Accordingly, this article explores how English jurisprudence relied upon conditional terms—possibly informed by ancient Greek and Neoplatonic scholarship—to achieve defensibility and security for English trusts in ways that differ significantly from the Roman scheme. By doing so, this article raises important new questions about how English law has placed boundaries upon valid conditionality.
{"title":"Defensible endowments: comparing different approaches in English and ancient Roman law","authors":"S. Pratt","doi":"10.1093/TANDT/TTAB028","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB028","url":null,"abstract":"\u0000 Whilst the parallels between ancient Roman fideicommissa and English trusts are well-documented, the author argues that insufficient attention has been given to their fundamental differences. This is particularly evident in the different methodologies employed by each system to protect endowments from potential attack by impatient beneficiaries. Accordingly, this article explores how English jurisprudence relied upon conditional terms—possibly informed by ancient Greek and Neoplatonic scholarship—to achieve defensibility and security for English trusts in ways that differ significantly from the Roman scheme. By doing so, this article raises important new questions about how English law has placed boundaries upon valid conditionality.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46179174","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The decision of the Court of Appeal in the recent case of O’Neill v Holland was, on the one hand, a useful reminder that detrimental reliance is always part of the necessary ingredients to establish a constructive trust of the family home. “detrimental reliance is always part of the necessary ingredients to establish a constructive trust of the family home”. The Court of Appeal agreed that the District Judge, at trial, had misdirected herself on the issue of detrimental reliance and had not appeared to realise that it was a key attribute required to underpin a constructive trust. On the other hand, the approach taken by the Court of Appeal in its decision could itself be clearer and it is suggested that, when the surface of the decision is scratched away, the decision does little to clarify the principles in this area. Rather oddly, it might be an instance of where going back to first principles is not necessarily the best approach to take.
{"title":"Trusts of the family home: it’s not just the judges who are confused","authors":"S. Atkins","doi":"10.1093/TANDT/TTAB052","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB052","url":null,"abstract":"\u0000 The decision of the Court of Appeal in the recent case of O’Neill v Holland was, on the one hand, a useful reminder that detrimental reliance is always part of the necessary ingredients to establish a constructive trust of the family home.\u0000 “detrimental reliance is always part of the necessary ingredients to establish a constructive trust of the family home”.\u0000 The Court of Appeal agreed that the District Judge, at trial, had misdirected herself on the issue of detrimental reliance and had not appeared to realise that it was a key attribute required to underpin a constructive trust. On the other hand, the approach taken by the Court of Appeal in its decision could itself be clearer and it is suggested that, when the surface of the decision is scratched away, the decision does little to clarify the principles in this area. Rather oddly, it might be an instance of where going back to first principles is not necessarily the best approach to take.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44295517","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Trusts and their comparative understanding","authors":"Maurizio Lupoi","doi":"10.1093/TANDT/TTAB012","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB012","url":null,"abstract":"","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46794547","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Legal arrangements carry their own risks. The courts and legislatures have had centuries to get trust law right, but when foundations were introduced in the Channel Islands and the Isle of Man around ten to twelve years ago, there was a chance to short-cut much of that incremental development, and to use much of the trust and company law experience. It was planned that foundations, in common law jurisdictions, would not be seen merely as trusts by another name. They were designed closely to resemble the civil law paradigm, in particular having legal personality, and the legislation made clear that they had different characteristics from trusts. This article looks at the effective oversight of foundations in the Isle of Man, drawing on experiences in Jersey.
{"title":"When things go wrong","authors":"Jonathan Rimmer","doi":"10.1093/tandt/ttab043","DOIUrl":"https://doi.org/10.1093/tandt/ttab043","url":null,"abstract":"\u0000 Legal arrangements carry their own risks. The courts and legislatures have had centuries to get trust law right, but when foundations were introduced in the Channel Islands and the Isle of Man around ten to twelve years ago, there was a chance to short-cut much of that incremental development, and to use much of the trust and company law experience.\u0000 It was planned that foundations, in common law jurisdictions, would not be seen merely as trusts by another name. They were designed closely to resemble the civil law paradigm, in particular having legal personality, and the legislation made clear that they had different characteristics from trusts.\u0000 This article looks at the effective oversight of foundations in the Isle of Man, drawing on experiences in Jersey.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44231701","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The limits of discretionary trusts: have powers of addition and removal been taken a step too far?","authors":"David Russell, T. Graham","doi":"10.1093/TANDT/TTAB039","DOIUrl":"https://doi.org/10.1093/TANDT/TTAB039","url":null,"abstract":"","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45554840","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Belgian Private Foundation is celebrating its 19th anniversary this year. The broad contractual freedom, combined with the favourable tax regime, makes this legal entity an interesting vehicle in terms of estate planning and for private charitable purposes. There have been some important changes to its legal framework given the new Company and Associations Code (CAC). In this article we provide an overview of the main characteristics of the Belgian private foundation.
{"title":"Jurisdiction-Specific Section: Belgium","authors":"M. Ex, A. Verbeke, Bart Verdickt","doi":"10.1093/tandt/ttab041","DOIUrl":"https://doi.org/10.1093/tandt/ttab041","url":null,"abstract":"The Belgian Private Foundation is celebrating its 19th anniversary this year. The broad contractual freedom, combined with the favourable tax regime, makes this legal entity an interesting vehicle in terms of estate planning and for private charitable purposes. There have been some important changes to its legal framework given the new Company and Associations Code (CAC). In this article we provide an overview of the main characteristics of the Belgian private foundation.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44300155","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A Russian trust management arrangement is a contract for managing third party assets and cannot be mirrored with common law trusts since Russian law is not familiar with the concept of beneficial ownership. Russian trust management agreements are mainly used for managing portfolios of securities by regulated Russian asset managers, for managing Russian real estate and for the short-term management of assets falling into the estate of a deceased person during the probation period. Not suitable for exclusive succession planning purposes, trust management thus cannot be an alternative to Russian hereditary foundations which were specifically launched in Russian law in 2018 as post-mortem local foundations, and whose use remains to be seen in practice.
{"title":"Uncovering Russian trust management agreements: not an alternative to Russian private foundations","authors":"Sergei Alimirzoev, Ilya Aleshchev","doi":"10.1093/tandt/ttab040","DOIUrl":"https://doi.org/10.1093/tandt/ttab040","url":null,"abstract":"\u0000 A Russian trust management arrangement is a contract for managing third party assets and cannot be mirrored with common law trusts since Russian law is not familiar with the concept of beneficial ownership. Russian trust management agreements are mainly used for managing portfolios of securities by regulated Russian asset managers, for managing Russian real estate and for the short-term management of assets falling into the estate of a deceased person during the probation period. Not suitable for exclusive succession planning purposes, trust management thus cannot be an alternative to Russian hereditary foundations which were specifically launched in Russian law in 2018 as post-mortem local foundations, and whose use remains to be seen in practice.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48074746","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Trustees and beneficiaries need to understand how fiduciary accountability regulates trustee authority. I intend to advance that understanding by explaining in abstract terms the nature of surrogate authority and fiduciary accountability. I will explain that opportunism is a concern wherever authority is transferred to a surrogate, and that fiduciary accountability is the generic response of the law across contexts.
{"title":"Accountability for authority","authors":"Robert Flannigan","doi":"10.1093/tandt/ttab010","DOIUrl":"https://doi.org/10.1093/tandt/ttab010","url":null,"abstract":"\u0000 Trustees and beneficiaries need to understand how fiduciary accountability regulates trustee authority. I intend to advance that understanding by explaining in abstract terms the nature of surrogate authority and fiduciary accountability. I will explain that opportunism is a concern wherever authority is transferred to a surrogate, and that fiduciary accountability is the generic response of the law across contexts.","PeriodicalId":43396,"journal":{"name":"Trusts & Trustees","volume":" ","pages":""},"PeriodicalIF":0.3,"publicationDate":"2021-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49331561","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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