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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.
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 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.
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. Back to International Tax Home Page 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. Back to International Tax Home Page 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? Back to International Tax Home Page 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. Back to International Tax Home Page 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. Back to International Tax Home Page 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? Back to International Tax Home Page 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 Back to International Tax Home Page 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. Back to International Tax Home Page 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. |