Diamond
Graduate School
of Law
LL.M. Program
Syllabus for Law of Trusts Law and Administration
Fall Semester only – 16 weeks and an exam week
October 1st week until last week January
I. COURSE DESCRIPTION
This course presents a very in-depth comparative approach to the relationships, rights, duties, obligations, created and/or embodied in jurisprudence and statutory regime for entities and also fiduciary relationships absent a entity with legal personality. The course particularly focuses on trusts and trustees but also examines other entities including corporate type legal persons with limited or unlimited liability for members and partnerships. This course then examines Civilian law entities, such as the foundation, stiftung, and stichting, as well as addressing the recognition of entities cross-border between Civilian and Common law jurisdictions and the Hague Convention and its potential uses is considered. This is not a tax course but rather a substantive law course. Generally, it is taken concurrently with Tax of Trusts, Companies, and other Entities. This course is taught by Dr Daan Ribbens, author of numerous academic articles and books on comparative legal issues associated with entities.
II. PURPOSE
An LLM executive level course. This course will be taught at the executive level and will employ case studies as well as global case analysis. Generally, this course is taken concurrently with Taxation of Trusts, Companies, Partnerships and Other Entities.
- 3 credits
- elective course
- no prerequisites
III. COURSE PROCEDURE
This course will involve fourteen weekly modules that are delivered through on-line instruction pursuant to current program specifications. Each module will contain text material, study guide instruction, and weekly interactive participation. Text material may contain a combination of code sections, cases, and commentary materials. Study guides will contain commentary materials upon the text materials with imbedded exercises and assignments to be completed either independently or within a group of two to five persons. Assignments may be submitted directly to the Instructor or submitted to the classroom.
Each module, selected students may be called upon to deliver answers in the Internet based classroom to questions posed by the instructor. Questions may be posed in case study form or in issue form. Answers may be short (one page) form or long form (five page analysis).
During the semester, module based audio and videotape lecture construction will be explored as well as the provision to students through streaming technology.
During the sixteen-week semester, the students will have two technology skills and control weeks. The first week of the course, the student will spend the time acquiring and testing the necessary accessing components of the course, including: blackboard skills, database access, proxy server access, material download, and other technical issues. Also, students will introduce themselves and identify with each other (camaraderie and network building). During the third week, students will be given another breather week to check the quality of their acquired technology technical skills and offsite database access in order to identify any problem areas that require immediate correcting.
During the semester, each student will receive at least two detailed feedback sessions from the Instructor through the detailed marking of his/her/group study guide assignments and/or class participation. Separately, the Instructor is available for office hour private counseling through email, telephone, and perhaps by residential office appointment.
Other assignments may receive feedback and will receive a grade, recorded in the online grade book that students may assess their performance.
IV. ATTENDANCE AND PARTICIPATION
This online course requires attendance which is measured by (1) the modular-weekly interactive participation opportunities in the classroom, (2) mandatory weekly participation through being called upon to address the class for certain modules as well as (3) modular study guide assignments. Missing mandatory weekly participation assignments is the equivalent of being not prepared in class and will result in a zero for that assignment. Not turning in study guide assignments will result in a zero for that assignment.
V. EVALUATION OF STUDENT PERFORMANCE
Grades will be determined through a combination of factors, as follows:
final exam – 50%;
weekly study guide assignments – 25%
weekly participation – 25%
VI. REQUIRED TEXTS
Electronic texts edited and authored by the Instructor, supplemented by reference materials. Reference materials will include source materials and secondary materials.
VII. REFERENCE MATERIAL
Reference material will be drawn and accessed from Internet enabled databases. These databases are already part of the database collection provided to all students in the LLM program.
BNA tax materials
CCH tax materials
Tax Analysts
Checkpoint Tax Materials (Thomson Tax’s amalgamation of RIA, WG&L, and Gee)
Matthew Bender
Butterworths and West Indies case law
Westlaw – tax databases
Lexis – tax databases
Quicklaw – tax databases
tax journal and law review Internet enabled sites
VIII. WEEKLY SYLLABUS
1. MODULE ONE: WHAT IS A TRUST?
1.1. The various definitions of trusts.
1.2. The essence of the trust idea.
1.3. The trust as a proprietary relation.
1.4. The trust as a vertical, fiduciary relation.
1.5. The “sine-qua-non role” of property in the trust as a legal figure. (Are all trusts “substrated” in property?).
1.6. The sine-qua-non fiduciary character of the vertical relation between the trustee and the trust beneficiaries. (Are all trustees fiduciaries?)
1.7. The distinction between “property”, “ownership” and “estates”.
1.8. The role of “legal estates” and “beneficial [equitable] interest [estate]” in trust law.
1.9. The various types of “property” (“things” or “res” [Latin for “things”]) upon which the trust relationship can be imposed.
1.10. Brief historical perspective -
1.10.1. Roman law: fideicommissum;
1.10.2. Germanic: Saalman or Treuhand;
1.10.3. English: the “use”.
1.10.4. The role of the Courts of Equity.
1.11. Eleven of the principal uses of the Trust Today.
1.12. {Brief overview of issues relevant to Trusts, including in particular
1.12.1. Sui generis character of the trust relationship, i.e. trusts distinguished from other legal concepts, such as, for instance, powers and fideicommissum and usufruct respectively of Civil Law;
1.12.2. the various traditional and alternative classifications of trusts, including in particular express, implied, resulting or constructive trusts and commercial trusts;
1.12.3. the dramatis personae;
1.12.3.1. settlor;
1.12.3.2. trustee(s);
1.12.3.3. protector.
1.12.4. The formal requirements for creating a trust.
1.12.5. The essentials of a trust;
1.12.6. Legality issues.
1.12.7. Major incidents of a trustee’s fiduciary obligations and duties.
1.12.8. The stand-off between Civil and Common Law with regard to concepts of property and the impact thereof on the law of trusts;.
1.13. Trusts in Civil Law and hybrid jurisdiction such as in particular Scotland, Louisiana and South Africa, Ceylon and the Channel Islands.
1.13.1. Conflicts of laws and the Trust.
1.13.2. Rapprochement through the Hague Convention.
1.13.3. The need for and purpose of the Hague Convention.
1.13.4. The proceedings leading up to the Hague Convention.
1.13.5. Relevant, material provisions of the Convention.
1.13.6. Signature, ratification and accession.
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MODULE TWO: SUI-GENERIS NATURE OF THE TRUST
1.14. Introduction.
1.15. “Nationality”?
2.1.1. The distinctive English character of the Anglo-American Trust.
2.1.2. The central position of the dichotomy “legal estate” and “beneficial estate”.
2.2. The Trust distinguished from other legal figures.
2.2.1. Contract.
2.2.2 Debt.
2.2.3 Deceased Estates
2.2.3.1 Personal Representatives and Trustees Compared.
2.3.1.1 When Personal Representatives Becomes Trustees.
2.2.4 Bailment.
2.2.5 Agency.
2.2.6 Equitable Charges .
2.2.7 Conditions and Charges.
2.3 Other Specific Issues.
2.3.1 The absence of legal personality.
2.3.2 Insolvency and bankruptcy: a brief preview of issues and perspective.
2.3.3 Personal liability: a brief preview of issues and perspective.
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MODULE THREE: CLASSIFICATION AND TYPES OF TRUSTS
3.1 Introduction.
3.2 Broad Classification.
3.2.1 Statutory.
3.2.2 Express.
3.2.3 Implied.
3.2.4 Resulting.
3.2.5 Constructive Trusts.
3.2.6 Other.
3.3 Statutory Trusts.
3.4 Express Trusts.
3.5 Implied or Resulting Trusts.
3.6 Constructive Trusts.
3.7 Simple and Special Trusts.
3.1 Simple Trusts.
3.2 Special Trusts.
3.8 Executed and Executory Trusts.
3.8.1 Executed Trusts.
3.8.2 Executory Trusts
3.9 Completely- and Incompletely- Constituted Trusts.
3.9.1 Completed Constituted Trusts.
3.9.2 Incompletely Constituted Trusts.
3.10 Fixed and Discretionary Trusts.
3.10.1 Fixed Trusts.
3.10.2 Discretionary Trusts.
3.11 Private and Public Trusts.
3.11.1 Private Trusts.
3.11.2 Public Trusts.
3.12 Commercial Trusts.
3.12.1 Introduction.
3.12.1.1 Tertium Quid (Contract, incorporation, Trust)
3.12.1.2 “Modern Business has become honey-combed with trusteeship”
3.12.1.3 Need fulfilled.
3.12.2 Categorisation.
3.12.2.1 “Holding-company” device Trusts (Cf. “Anti-trust” measures).
3.12.2.2 Voting Trusts.
3.12.2.3 “Commercial-security” device Trusts.
3.12.2.4 Equipment Trusts.
3.12.2.5 Trust Receipts.
3.12.2.6 Trading Trusts.
3.12.2.7 Employee Trusts.
3.12.2.8 Pension-Fund Trusts.
3.12.2.9 Investment Trusts -
3.12.2.9.1 Mutual Funds or Unit Trusts.
3.12.2.9.2 Real Estate Investment Trusts (REITs);
3.12.2.9.3 Oil-and-Gas-Royalty Trusts;
3.12.2.9.4 Asset-Securitisation Trusts;
3.12.2.10“Regulatory-Compliance” Trusts (“trusts created primarily for the purpose of discharging responsibilities imposed by law”) –
3.12.2.10.1Nuclear-decommissioning Trusts;
3.12.2.10.2Environmental-remediation Trusts;
3.12.2.10.3Liquidating Trusts;
3.12.2.10.4Pre-paid Funeral Trusts;
3.12.2.10.5Foreign-Insurers’ Trusts;
3.12.2.10.6Law-office Trust Account;
3.12.3 “Remedial Trusts” (“Trusts created to settle or resolve disputes in judicial or administrative proceedings”).
3.12.4 Miscellaneous Commercial Uses of Trusts.
3.13 New Classifications of Trusts?
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MODULE FOUR: DRAMATIS PERSONAE
4.1 Introduction
4.1.1 Settlor.
4.1.2 Trustee(s).
4.1.3 Trust Beneficiary/ies.
4.1.4 Protector(s).
4.2 Disqualification Issues (to what extent is any one participant permitted to wear more than one hat?)
4.3 Rights and obligations of respectively -
4.3.1 Settlor;
4.3.2 Trustee;
4.3.3 Trust Beneficiary’s –
4.3.3.1 right to information;
4.3.3.2 right to compel compliance with trust instrument;
4.3.3.3 quasi-derivative action against third-party wrongdoers?
4.3.4 Protector.
4.4 The sui generis nature of the trust beneficiary’s interest in the trust property –
4.4.1 under the Common Law;
4.4.2 under the Civil Law.
4.5 Categorisation -
4.5.1 The traditional equitable-interest/estate foundation.
4.5.2 The jus in personam and jus in rem debate.
4.5.3 The “Latinisms-must-go” approach.
4.5.4 The traditional equitable-interest/estate approach under scrutiny.
4.5.5 An alternative restatement.
4.6 Personal liability of Dramatis Personae -
4.6.1 Settlor;
4.6.2 Trustee;
4.6.3 Trust beneficiaries.
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5 MODULE FIVE: FORMAL REQUIREMENTS FOR THE CREATION OF A TRUST, THE ESSENTIALS OF A TRUST, THE CONSTITUTION OF A TRUST AND THE LEGALITY OF THE TRUST
5.1 General.
5.1.1 Overview.
5.1.2 Fundamental seminal issues –
5.1.2.1 The distinction between the so-called “rocket” and the “rocket launcher”.
5.1.2.2 The Trust as a branch of the law of gratuitous/donative transfers or gifts.
5.1.2.3 The Trust as the child of the stipulatio alteri or the “agreement in favour of a third party”.
5.1.2.4 The general aversion in English (but not in Scots law {or in the law of some states in the USA) to the stipulatio alteri or the “agreement in favour of a third party”.
5.1.2.5 The inadequacy of the traditional theory in the case of the Commercial Trust.
5.1.3 The different formality requirements in the case of a commercial trust as “a trust that implements bargained-for exchange, in contrast to a donative transfer”.
5.1.4 A new dawn ( - “…[t]he difference between trust and a third-party beneficiary contract is largely a lawyers’ conceptualisation”).
5.2 Substantive requirements: Certainty of –
5.2.1 intention to create trust;
5.2.2 subject matter;
5.2.3 objects and administrative workability.
5.3 Formal requirements for the creation of a trust –
5.3.1 capacity to create a trust;
5.3.2 statutory requirement of writing;
5.3.3 inter vivos trust;
5.4 Post Mortem Trusts: Secret Trusts -
5.4.1 general;
5.4.2 fully secret trust;
5.4.3 half-secret trust;
5.4.4 The basis of secret trusts.
5.5 Post Mortem Trusts: Mutual Wills.
5.6 The Constitution of the Trust.
5.6.1 Introduction.
5.6.2 When will a Trust be completely constituted?
5.6.3 The distinction between Executed and Executory Trusts.
5.6.4 When a Trust is incompletely constituted, when will the beneficiaries have a contractual remedy?
5.7 The Legality of a Trust.
5.7.1 Introduction.
5.7.2 Perpetuities and accumulations.
5.7.3 Safeguarding property from creditors.
5.7.4 Safeguarding property from claims by dependants.
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MODULE SIX: MAJOR INCIDENTS OF TRUSTEES’ FIDUCIARY DUTIES
6.1 General Introduction.
6.2 Avoidance of Conflict of Interest and Duty:
6.2.1 Purchase of Trust Property by Trustees.
6.2.2 Profits Incidental to Trusteeship.
6.2.3 Competition with the Trust.
6.2.4 Gratuitous Administration of Trust.
6.3 Investment of Trust Funds:
6.3.1 The Range of Investments.
6.3.2 Duties when Investing.
6.3.3 Specific Statutory Provisions.
6.3.4 Interpretation of Investment Clauses.
6.4 Delegation by a Trustee:
6.5 Deviations from the Terms of a Trust –
6.5.1 where the beneficiaries are sui generis;
6.5.2 where the beneficiaries are not sui generis.
6.6 Trustee’s Duty of Impartiality -
6.6.1 The Rule in Allhusen v Whittell;
6.6.2 The Duty to Convert;
6.6.3 Duty to apportion;
6.6.4 The Method of Apportionment;
6.6.5 Apportionment in Relation to Leaseholds;
6.6.6 Overriding Duty to Act Fairly;
6.6.7 Proposals of Law Reform Committee;
6.6.8 Other Apportionment Instances;
6.7 The Trust Property:
6.7.1 Reduction of Trust Property into Possession;
6.7.2 Duty to Account and Give Information;
6.7.3 Distribution of Trust Property;
6.7.4 Statutory and Judicial Protection of Trustees in Respect of Distribution
6.8 Judicial Control of Trustees.
6.9 Indemnity of Trustees.
6.9.1 Indemnity against the Trust Property.
6.9.2 Indemnity Against the Beneficiary Personally.
6.10 Third Party and Trustees.
6.11 Derivative Action?
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7 MODULE SEVEN: THE STAND-OFF BETWEEN CIVIL AND COMMON LAW WITH REGARD TO THE TRUST
7.1 Introduction and General.
7.1.1 Cardinal differences between Common Law and Civil Law.
7.1.2 Basic Concepts –
7.1.2.1 Tenure, Interest, Estate, Use;
7.1.2.2 Ownership and Property.
7.2 Trusts in Civil Law: the “hybrid” jurisdictions -
7.2.1 Introduction.
7.2.2 Ceylon/Srilanka.
7.2.3 Quebec.
7.2.4 Scotland.
7.2.5 South Africa.
7.2.6 Jersey.
7.2.7 Louisiana
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8 MODULE EIGHT: TRUSTS IN THE CIVIL LAW (CONTINUED) AND IN OTHER JURISDICTIONS
8.1 The Trust in Continental Jurisdictions.
8.1.1 France.
8.1.2 Germany.
8.1.3 Italy.
8.1.4 Liechtenstein.
8.1.5 The Netherlands.
8.1.6 Spain.
8.1.7 Switzerland.
8.2 “Principles of European Trust Law”.
8.3 Other Jurisdictions
8.3.1 Japan.
8.3.2 Islamic Law.
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MODULE NINE: CONFLICTS OF LAW, THE HAGUE CONVENTION AND THE EXPORTING OF TRUSTS
9.1. Prior to the Hague Convention
9.1.1. Introduction
9.1.2. General Rules
9.1.3. Problem Areas
9.2. The Hague Convention
9.2.1. Background
9.2.2. General Introduction
9.2.3. Reasons for the Hague Convention
9.2.4. Purpose of the Hague Convention
9.2.5. Proceedings culminating in the Hague Convention
9.2.6. Material Provisions of the Hague Convention.
9.2.7. Signature, ratification and accession.
9.3 Excursus In English Law: Exporting Trusts
9.3.1 | 
