Some non-US trust jurisdictions may not recognize the revocable inter vivos trust

Charles E. Rounds, Jr.

A note of caution: Not all trust jurisdictions have been receptive to the concept of a “revocable” inter vivos trust: “For example, trusts with assets and objects totally under the control of the settlor until death or incapacity may well be held invalid in the common-law jurisdictions of England, New Zealand, Australia, and Canada (omitting Quebec, as a civil law province)….Courts in those countries, like early cases in this country … may conclude that no trust can come into existence until such extensive settlor control is removed, characterizing the arrangement as “testamentary” or as an agency rather than a trust relationship.” Restatement (Third) of Trusts §74, Reporter’s Notes. See generally §9.9.2 of Loring and Rounds: A Trustee’s Handbook (discussing the differences between a trust and an agency). Take Webb v. Webb [2020] UKPC 22, a Cook Island trust under which the settlor had “reserved such broad powers to himself” that the Judicial Committee of the Privy Council determined that the legal and beneficial interest had remained vested in the ostensible settlor ab initio. In other words, in equity all interests had remained merged in the ostensible settlor such that no enforceable trust relationship had ever been established. See generally §8.7 of the Handbook and §8.15.36 of the Handbook (merger). One can expect sooner rather than later that legislatures in the off-shore jurisdictions in which the Judicial Committee of the Privy Council is the court of final appeal will be endeavoring to come to the rescue of, or at least shore up, the Webb-type revocable trust. How equity will respond to such statutory encroachments remains to be seen. The Hague Convention on the Law Applicable to Trusts and on Their Recognition, see §8.12.2 of the Handbook, has, since its promulgation in 1985, been more or less revocable-trust friendly. In the U.S. jurisdictions, the revocable inter vivos is now universally accepted as a will substitute and frequently employed as such. The duties of the trustee of a revocable inter vivos trust are taken up generally in §8.11 of the Handbook, which section is reproduced in its entirety in the Appendix below.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Charles E. Rounds, Jr.

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