Ownership of Trust Property in Scotland and Louisiana

Abstract

This chapter addresses a narrow but important point relating to the nature and constitution of trusts, and one which appears to have been satisfactorily resolved in Scots law but unsatisfactorily addressed in Louisiana. In Scotland, the law has followed practice: trusts exist, and questions of what they are and why they work have been seen as of secondary importance. In Louisiana, the trust has met with rather more resistance, being gradually facilitated by legislation. There has never been anything approaching a code of trust law in Scotland, but the prohibition of fidei commissa and substitutions in Louisiana law meant that the recognition of trusts required enabling legislation, first for charitable trusts (in 1882) and then for private trusts (in 1920), the law in both areas having been gradually liberalised over time to allow for wider use of the device. The chapter addresses the following issues: whether trusts are even necessary, who owns trust property in Louisiana, who owns trust property in Scotland, and the trustee-as-owner theory.