IECL Comparative Catalyst Seminar - "Do Objects of Powers Under Trusts Have (Property) Rights?"

This new seminar series has been created to give academics working on difficult new topics a chance to test out ideas through discussion with lawyers experienced in more than one legal system. The aim is to give new insights and ways of looking at the law and legal reasoning, inspired by the best of multiple legal systems. The IECL hosts the seminar as a chance to harness the on average ten or more legal systems' worth of expertise sitting at any one time in the Institute.

Sandwich lunch is provided for those arriving at 12.00.

 The institution of the private trust enables the owner of an asset to vest that asset in one person (the trustee) for the benefit of others (the beneficiaries). The problem of characterising this structure - and, above all, determining whether trust beneficiaries have ‘property rights’ in some meaningful sense - is one of the most enduring doctrinal puzzles faced by common lawyers. This paper examines a particular subcategory of this problem, which it argues sheds light on the whole: the legal position of objects under powers. These exist in cases where a person (the donee of the power) has a power to distribute assets to a given person or among a given class of persons (objects of the power) but is not obliged to make any such  distribution. The donee will be under some duties to make proper decisions as to the exercise of the power, and the objects collectively will usually have the ability to sue both the donee and unauthorised recipients of the assets where the power is improperly exercised. However, the objects usually have no entitlement to demand the assets themselves, either individually or collectively. The paper examines the remedies available to objects of powers under a trust in a range of common law jurisdictions and asks whether and when these remedies imply that the objects have 'rights' against the donee, or in relation to the trust assets, or whether the availability of these remedies must be understood in some other way.