Pragmatic Modernisation? Judicial Directions in Trusts and Wealth Management

TY - CHAP

T1 - Pragmatic Modernisation? Judicial Directions in Trusts and Wealth Management

AU - Lee, James

PY - 2022/12/31

Y1 - 2022/12/31

N2 - This chapter argues that trusts decision-making at the highest level is moving in a new direction. It examines recent decisions in the field of trusts and wealth management from the Privy Council (Webb v Webb (Cook Islands) [2020] UKPC 22) and the Hong Kong Court of Final Appeal (Zhang Hong Li v DBS Bank (Hong Kong) Ltd [2019] HKCFA 45) and the UK Supreme Court (Children's Investment Fund Foundation (UK) v. Attorney General [2020] UKSC 33), These cases raise disparate issues in trusts and equity, and see some divergences in judicial approach, but it is argued that a theme of pragmatism can be identified in seeking to ensure that trust law principles are responsive to modern practices, domestically and off-shore. The complexity of trust structures and the administration of them raise fundamental challenges to some conventional Chancery ways of understanding the trust and fiduciary obligations. The problem is that greater inventiveness can come at the cost of certainty unless the courts consider and set the limits of both principles and any exceptions to those principles. These decisions also demonstrate that the law is developing at a time when the Law Commission has proposed a project for ‘Modernising Trust Law for a Global Britain’ – arguably, that process is already under way in the judicial sphere.

AB - This chapter argues that trusts decision-making at the highest level is moving in a new direction. It examines recent decisions in the field of trusts and wealth management from the Privy Council (Webb v Webb (Cook Islands) [2020] UKPC 22) and the Hong Kong Court of Final Appeal (Zhang Hong Li v DBS Bank (Hong Kong) Ltd [2019] HKCFA 45) and the UK Supreme Court (Children's Investment Fund Foundation (UK) v. Attorney General [2020] UKSC 33), These cases raise disparate issues in trusts and equity, and see some divergences in judicial approach, but it is argued that a theme of pragmatism can be identified in seeking to ensure that trust law principles are responsive to modern practices, domestically and off-shore. The complexity of trust structures and the administration of them raise fundamental challenges to some conventional Chancery ways of understanding the trust and fiduciary obligations. The problem is that greater inventiveness can come at the cost of certainty unless the courts consider and set the limits of both principles and any exceptions to those principles. These decisions also demonstrate that the law is developing at a time when the Law Commission has proposed a project for ‘Modernising Trust Law for a Global Britain’ – arguably, that process is already under way in the judicial sphere.

M3 - Chapter

SP - 178

EP - 198

BT - Trusts and Private Wealth Management: Developments and Directions

A2 - Nolan, Richard

A2 - Tang, Hang Wu

A2 - Yip, Man

PB - Cambridge University Press, Cambridge

ER -