Thesis (doctoral)--Universität Köln.

Thesis (doctoral)--Universität Marburg.

Thesis (Ph. D.)--Princeton University, 1927. / Published also without thesis note. Bibliography: p. 487-563.

Thesis (Ph. D.)--Princeton University, 1927. / Published also without thesis note. Bibliography: p. 487-563.

The taxation of trust income is subject to inherent problems due to the nature of the trust itself which allows the separation of the legal and equitable interests and the creation of differing equitable interests in income arising from property held in trust. Problematic areas include questions as to whom should be taxed on trust income, when and at what rate persons should be taxed, and on what they should be taxed. Taxation of trust income under Canadian law depends on the nature of the income as currently distributable or as accumulating, and on the nature of the trust as testamentary or inter vivos. Provision is made for the taxation of the trust or of the beneficiary. Certain types of income are permitted to retain their character in the hands of the beneficiary. An attempt to devise a logical system for the taxation of trust income reveals in detail the type of problems inherent in such a system. Conceptual and practical difficulties in determining the appropriate taxpayer, rate, and timing of taxation are considered as is the nature of the beneficial interest and its significance for tax purposes. The Canadian taxation of trust income does not completely resolve these problems. The proposals of the Royal Commission and the current law in the United States and the United Kingdom are compared and contrasted with Canadian law. Differences among the rules of the various systems, reflect differences in the way they deal with the problems inherent in the taxation of trust income. The problems and their Canadian solutions are reviewed in comparison with methods adopted elsewhere. Any change to the existing rules would require a number of interrelated changes. It is not clear that improvements which might be effected are justifiable given the increased complexity attendant on their introduction. / Law, Peter A. Allard School of / Graduate

The purpose of this thesis is to study the feasibility of using a trust as an alternative to the will in the jurisdiction of British Columbia. The genesis of the study lies in the liberal interpretation and application of the Wills Variation Act by the courts in this province. Assuming that the free alienation of property upon death is a sound principle, it is incumbent upon the legal community to find methods of avoiding the interference of the judiciary in testamentary matters. To properly assess the trust as an alternative to the will, a brief overview of both is provided. The historical context of the trust is examined, followed by a review of its use in the United States as a wills substitute. The particular trust popular in the United States is one containing a power to revoke by the settlor, a life interest with power to encroach upon capital in favor of the settlor, and powers of modification and control retained by the settlor. It is hereinafter referred to as the revocable trust. Whether the revocable trust would be acceptable to the commonlaw of British Columbia is examined, and the conclusion reached is that there is nothing in theory to prevent its use as an alternative to the will. However, careful drafting must be used at all times to prevent attacks upon the validity of the trust itself. Certain practical considerations in using the revocable trust as an alternative to the will are reviewed, including income tax laws, provincial tax laws, and possible claims by beneficiaries. The more philosophical issue of whether the use of a trust should be permitted to avoid claims by surviving spouses and children is also examined. Conflicting doctrines in the United States are reviewed in light of existing caselaw in British Columbia. The tentative conclusion is that our own courts will permit a settlor to avoid succession claims by employing the trust. Again, however, careful drafting is crucial, and the facts in each case must be reviewed. The study establishes that the revocable trust can be used as an alternative to the will in British Columbia. The popularity of such use may, however, be limited by Canada's income tax laws as well as provincial tax laws. The resistance of the legal community to new ideas may also reduce the possible use of the revocable trust as an alternative to the will. / Law, Peter A. Allard School of / Graduate

No description available.

The rapid expansion of the Chinese economy has made China aware if the importance of the rule by law. Perfecting its legal system and expanding its economy are the two goals of modern China. Many laws and regulations have been enacted since the economic reform was launched at the end of 1970s. The enactment of the Chinese Law of Trusts is an important step in the refinement of the Chinese legal system.This thesis aims to identify the deficiencies in the Chinese Law of Trusts by giving a critical and comparative study of the Australian and the Chinese trusts law, so as to propose amendments to the Chinese Law of Trusts. This thesis is divided into two Parts, and seven Chapters. Part One, which comprises five chapters, is a comparative study of the Australian and the Chinese trusts law. It also discusses the laws of trusts in other important Common Law and Civil Law jurisdictions. Chapter 1 of this Part deals with the basic concept of the trust. It introduces and discusses the definition, and the characteristics of the trust, the comparison between the trust and other similar concepts, and the classification of trusts. Chapter 2 deals with the creation of express trusts. With respect to the rights and duties of the trust parties, Chapter 3 gives a detailed discussion. Chapter 4 examines the variation and termination of trusts. The last chapter of Part One, Chapter 5, specifically analyses the charitable trusts.Part Two comprises two chapters: Chapter 6 and Chapter 7. Chapter 6 discusses the practical impact of the Chinese Law of Trusts on the Chinese State-owned enterprise reform, which has been progressing for more than two decades in China. Chapter 7 is a general concluding chapter. It pinpoints the deficiencies in the Chinese Law of Trusts, analyses the reasons for the deficiencies, and suggests two solutions to improve the Law: namely, to improve the existing provisions of the Law and to adopt eclectically the elaborate concepts of the Australian law of trusts.

It is settled law that the trustee of any trust is unequivocally charged with the duty to invest the assets of the trust. However, in south Africa in the past, this duty has been qualified, with avoidance of risk seen as the trustee's number one priority when investing. The legislature and the judiciary focused on providing safeguards for beneficiaries and trustees were to avoid all risk to the capital of the trust. This reflected the attitude of the 19th and first half of the 20th century when the value of money had remained steady over long periods and inflation was non-existent. However, changes began to occur in world economics, such as the devaluing of currencies and progressive inflation. Despite these harsh economic realities, the courts continued for some considerable time to favour investment in interest-bearing securities. Most of the time trustees erred on the side of caution, following the judiciary's lead. Unfortunately, as it will be pointed out, this meant that the trustees were blind to their primary task, which is and always has been, to do the best for the beneficiaries. Trustees will have to expose the assets to at least some risk in order to outperform inflation, as the traditional investments are no longer suitable. This change in investment thinking was confirmed in South Africa in Administrators, Estate Richards v Nicol and Another 1999 1 SA 551 (SCA). Every trustee is, therefore, faced with a dilemma when engaging in investment decision making. He or she is under a duty to invest with the minimum of risk and also to balance the interests of competing beneficiaries. The trustee is under a duty to balance the risk against the rewards, always bearing in mind that he or she must "preserve the trust fund rather than overtly seek its advancement". Any exercise of the duty to invest will be limited by the provisions contained in the trust instrument as well as those provided for by statute, particularly the duty of care. Change occurred in English Trust Law with the introduction of the Trustee Act, 2000. The Trustee Act removes the constraints of the previous legislation and imposes positive obligations on trustees in their place, which reflect the reality of modern investment practices. Under section 1 of the Trustee Act a new uniform duty of care is created to guide trustees when performing their functions under the Act or a trust instrument. This uniformity is aimed at providing certainty and consistency in respect of the standard of competence and behaviour expected of trustees in all situations. The statutory duty of care is founded on the premise that there is a baseline standard of care expected of all trustees when investing trust assets. This standard is that of the "reasonable trustee", as referred to in section 1 (1 ) of the Trustee Act. The law in South Africa does not provide sufficient guidance for trustees, particularly in the area of trustee investment. It could certainly benefit from the sort of review that led to the changes in the English law. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2006.

It is settled law that the trustee of any trust is unequivocally charged with the duty to invest the assets of the trust. However, in south Africa in the past, this duty has been qualified, with avoidance of risk seen as the trustee's number one priority when investing. The legislature and the judiciary focused on providing safeguards for beneficiaries and trustees were to avoid all risk to the capital of the trust. This reflected the attitude of the 19th and first half of the 20th century when the value of money had remained steady over long periods and inflation was non-existent. However, changes began to occur in world economics, such as the devaluing of currencies and progressive inflation. Despite these harsh economic realities, the courts continued for some considerable time to favour investment in interest-bearing securities. Most of the time trustees erred on the side of caution, following the judiciary's lead. Unfortunately, as it will be pointed out, this meant that the trustees were blind to their primary task, which is and always has been, to do the best for the beneficiaries. Trustees will have to expose the assets to at least some risk in order to outperform inflation, as the traditional investments are no longer suitable. This change in investment thinking was confirmed in South Africa in Administrators, Estate Richards v Nicol and Another 1999 1 SA 551 (SCA). Every trustee is, therefore, faced with a dilemma when engaging in investment decision making. He or she is under a duty to invest with the minimum of risk and also to balance the interests of competing beneficiaries. The trustee is under a duty to balance the risk against the rewards, always bearing in mind that he or she must "preserve the trust fund rather than overtly seek its advancement". Any exercise of the duty to invest will be limited by the provisions contained in the trust instrument as well as those provided for by statute, particularly the duty of care. Change occurred in English Trust Law with the introduction of the Trustee Act, 2000. The Trustee Act removes the constraints of the previous legislation and imposes positive obligations on trustees in their place, which reflect the reality of modern investment practices. Under section 1 of the Trustee Act a new uniform duty of care is created to guide trustees when performing their functions under the Act or a trust instrument. This uniformity is aimed at providing certainty and consistency in respect of the standard of competence and behaviour expected of trustees in all situations. The statutory duty of care is founded on the premise that there is a baseline standard of care expected of all trustees when investing trust assets. This standard is that of the "reasonable trustee", as referred to in section 1 (1 ) of the Trustee Act. The law in South Africa does not provide sufficient guidance for trustees, particularly in the area of trustee investment. It could certainly benefit from the sort of review that led to the changes in the English law. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2006.