Abstract
In South Korea, there is an academic dispute whether an asset transferred to a trust could be clawed back based on the claimant’s forced heirship and, if the answer is positive, in which shape this claw-back would take place. The author of this article tries to give a comparative overview as to this question, analyzing American, English, Swiss, French and German law. Hereby he observes what follows. (1) The claw-back is overall granted. (2) The revocability of trust plays a crucial role to determine the shape of this claw-back. (3) The forced heirship or comparable right guarantees that the claimant demands his or her share from the trust’s capital. The author thinks these insights should be respected when one applies the Korean Civil Code. This means what follows. (1) The claw-back should be granted. (2) The trust in lieu of will (revocable trust) whose life-time interest is vested upon the settlor should be treated as donation inter vivos which takes effect at the settlor s death. The claw-back is to be raised against the trustee or beneficiary into whom the trust’s capital flowed. (3) The testamentary trust should be treated as legacy, the irrevocable living trust as donation inter vivos which takes effect at its settlement. The claw-back is also to be raised against the trustee or beneficiary into whom the trust’s capital flowed.
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Disclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.