To reserve or not to reserve? What can possibly go wrong—Part II

Abstract

Abstract This article builds on Part I, in which we looked at options for reserving powers in a number of key trust jurisdictions. We also suggested that caution and restraint would be appropriate, given such provisions have not been widely tested in the courts and the appreciation in the profession that the greater the powers retained, the greater the risk of invalidity or some form of look through has been borne out in the Pugachev case.1 This second part explores what can possibly go wrong when too much power is retained or concentrated, and asks what—if anything—can be done to remedy any resulting difficulties.