The Legal and Economic Development of the Express Trust: Advancing A Conceptual Model for the Development and Reform of the Express Trust

Abstract

This thesis advances a unified concept of the express trust—both private and charitable—that emerges from an examination of its mandatory law, and informed by the oft-cited purpose of the trust structure: to benefit another. This concept, or theory of the express trust, is of a framework of legal rules whose purpose is to confer enforceable benefits on people, and that what is beneficial is determined by reference to the broader social context (which includes the economic and commercial environment) in which an express trust operates. The reason for advancing such a concept of the express trust, and the problem it addresses as a result, is that in the modern social and economic context, private and charitable trusts have come to be utilised in new and novel ways which challenge traditional understandings of their functions, limits and purposes; threatening to render the term “express trust” as simply a label applied to certain legal structures with no discernable common rationale. Yet if a consensual legal structure, such as the express trust, is to remain socially relevant, it must also adapt and develop with the times, else risk falling into disuse and irrelevancy. Accordingly, the strain between these two countervailing forces represents an on going challenge in seeking to develop and reform the laws of the express trust, which a theoretical concept of the express trust is well positioned to address. To that end, this thesis develops a conceptual framework for understanding the express trust with positive and normative force that is capable of addressing the challenges facing the express trust in the modern context. This is demonstrated by its application to four issues facing the modern express trust: settlor/third-party enforcement; the abolition of the rule against perpetuities and the rule in Saunders v Vautier; the nature of the trustee’s rights of indemnity; and the Non-Charitable Purpose (“NCP”) trust. This exercise shows how these, and other, challenges can be mediated into the laws of the express trust through the conceptual framework advanced in this thesis, so as to ensure the express trust remains socially reflective, while simultaneously remaining functionally cohesive as a legal structure for the benefit of another.