Trusts and Patrimonies by Valsan Remus;

Author:Valsan, Remus;
Language: eng
Format: epub
Publisher: Edinburgh University Press

7 Scottish Trusts in the Common Law*

Lionel D Smith**

A. INTRODUCTION

B. SCOTTISH TRUSTS …

C. … IN THE COMMON LAW

(1) Trusts and estates

(2) The position of estate beneficiaries

(3) Historical foundations

D. TRUSTEES AND PERSONAL REPRESENTATIVES IN THE COMMON LAW

E. EVEN MORE SCOTTISH TRUSTS IN THE COMMON LAW

(1) The way of the future?

(2) Effects on beneficiaries

(3) Effects on non-contractual creditors

(4) Conceptual difficulties

F. CONCLUSION

A. INTRODUCTION

It is a great pleasure to be here this evening, to give this twelfth annual W A Wilson Memorial Lecture. More than that, it is a genuine honour to be here, at this great law faculty in this great city, to give a lecture in memory of a great jurist and a great teacher. Unlike many of you, I did not know Bill Wilson. But I have gleaned a sense of the breadth of his scholarly interests, and I think also of his character, from having read his published work, and in particular from having read the book of essays created in his memory in 1996.1 He is known, of course, for many contributions in many fields during a long career. One of his interests was the law of trusts, and the Scots law of trusts will be a starting point for my lecture this evening.2

After tracing some recent developments in our understanding of the juridical nature of the trust in Scots law, my goal will be to show how the Scottish trust is – and, how it is not – found in the common law. First, how it is not: the trust of the common law tradition cannot be understood according to the principles that underlie the trust of Scotland. But then, how it is: the common law does have an institution that corresponds almost exactly to the Scottish trust. This institution is the estate of a deceased person. Common lawyers know that their estate is different from their trust, although I will suggest that they are not entirely certain how or why it is different. I will argue that the Scottish trust sheds light on this puzzle, and, along with a dose of legal history, helps us to understand the ubiquitous presence of Scottish trusts in the common law. I will go on to discuss some recent developments in trusts in the common law world, which show that there may be more Scottish trusts in the common law, and that there may be still more before very long. Finally, I will conclude by asking whether the common law tradition has or has not reason to be concerned by these developments.

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