Trust Disputes Research Articles

Mediating probate and trust disputes—process challenges and tools: part 1

Abstract While it is not the function of a mediator to speak truth to power, a mediator can facilitate the re-framing of a dispute as an opportunity, by enabling each participant to think about what is important to them, so that the participants can jointly agree upon a ‘methodology’, i.e. a ‘road map’ for convergence and consensus. This requires a ‘paradigm shift’, i.e. acceptance by each participant that there is a better way of resolving their dispute than proceeding to trial. In Part 1, the author discusses the benefits of mediation, the process, ground rules, and how best to prepare for the mediation day. In Part 2 (to be written in 2023), the author will discuss the challenges throughout each phase of the mediation day, and the tools available to a mediator to help engineer a sudden outbreak of common sense in a probate and trust dispute.

‘If you take a horse to water it usually does drink’—mandatory mediation of trust disputes in New Zealand: Wright v Pitfield [2022] NZHC 385

Abstract Under the Trusts Act 2019, New Zealand’s High Court can compel parties to attend mediation against their will. Some argue that this compulsion is anathema to the voluntary and consensual nature of mediation. Others argue that it is pragmatic—recognising the proven success of mediation and its myriad advantages over litigation. In Wright v Pitfield, a typical family trust dispute between former spouses, the High Court exercised this power for the first time—finding that it was the ‘type of case Parliament had in mind when providing jurisdiction for the Court to require parties to attend mediation’. The question is whether courts will take a similarly liberal approach in more exceptional cases.

The arbitration of trust disputes in New Zealand—a new frontier?

Abstract Several provisions in New Zealand’s Trust Act seek to create a regime for the determination of trust disputes through alternative dispute resolution processes. At first blush, the regime seems to resolve the question of whether trust disputes are amenable to resolution through arbitration. However, on closer inspection, the regime gives rise to some real concerns about the recognition and enforceability of some awards, especially when those awards are rendered without the consent of all otherwise interested parties. This article discusses the regime and explores those concerns to highlight the perceived shortcomings.

Cross-Border Trust Disputes and Choice of Law in East Asia

Cross-Border Trust Disputes and Choice of Law in East Asia

A Research on the Basic Structure of Family Trust and Testamentary Trust Disputes

「福祉型信託」（Welfare Trusts）為家族治理（Family Governance）、家族事業所有權（Family Property Business Ownership）、家族財產事業經營管理（Family Property Business Management）所組成之「家族信託」（Family Trust）核心，具有民事信託與商業信託之雙面性，且非僅僅為單純之財產管理制度，而係「財產管理運用、活用以及傳承」機能之最大程度展現，以完整支援信託利益享有者包括生活及財產管理全盤支援架構建立之身心照護。有鑑於此，本文以我國信託法主要繼受之日本「信託法」法制規範及其相關學理與實務發展為比較法對象，以福祉型信託為核心，對家族信託與遺囑信託進行研究。首先，家族信託制度之建置上，須考量其與消費者權益調和、裁量信託使用界線與合理分配、共益定性、第三人介入之限制、責任信託之搭配。其次，針對永續傳承、連續受益人、特留分、目的信託與特定目的信託、「閉鎖性公司＋自益信託」架構等家族信託爭議問題，提出研究對策。再者，家族信託法制尚未完整建立前，應以前述福祉型信託為核心之家族信託為基礎，對信託行為與方法解釋與修正、受益人權益確保、遺囑信託受託催告、法院選任遺囑信託受託人、遺囑信託委託人之繼承人、替代遺囑信託等議題進行解析，俾使我國遺囑信託功能確實發揮與家族信託內涵相互搭配。最後，從家族信託架構下之委託人與受託人角色與功能，提出本文之結論與建議。<br />“Welfare trust”is the core of a family trust composed of family governance, family property business ownership, and family property business management. It has duality of civil trust and commercial trust in that it is not only a pure property management system, but also the maximum demonstration of the function of property management application, utilization, and inheritance to support the physical and mental care of the trust beneficiaries which include the establishment of a comprehensive support structure for life and a thorough property management. In the establishment of the family trust system, this article firstly argues that it is necessary to consider the coordination with consumer rights, discretionary trust boundaries and reasonable distribution, common benefits, restrictions on third party intervention, and liability trust. Secondly, this article puts forward the research results on the controversial issues of family trust such as perpetual inheritance, continuous beneficiaries, legally reserved portion, purpose trusts and special purpose trusts, and“closed company with self-benefit trust”structure. Furthermore, before the establishment of a complete family trust legal structure, it is important to analyze the combination of testamentary trust and family trust, interpretation and amendment of trust behaviors and methods to ensure the rights and interests of the beneficiaries, and the appointment the trustee of the testamentary trust by the court, the successor of the settlor of the testamentary trust, and alternative testamentary trust (trust with successive beneficiaries). Finally, the article provides conclusions and suggestions from the perspective of the settlor and the trustee of trust.<br />

I Won’t See You in Court! Mediation, arbitration and the nonjudicial resolution of estate and trust disputes

Abstract This article will summarize the provisions of the Arbitration Law 1968 (the “Arbitration Law”), the Courts Regulations (Mediation) 1993 (the “Mediation Regulations”) and a few court cases involving prominent families for which information is publicly available. In addition, the article will discuss the availability of out-of-court proceedings in trust disputes.

Mediation as a remedy in trust and probate disputes: A review of the comparative approach for international lawyers

Trust and estate law focuses backwards to determine the grantor’s intent and which parties are right or wrong under legal precedent. In the law of trusts, mediation is often the route chosen by the parties because it offers the most effective method of resolving disputes which arise when one party has deemed their property to be severed and the trustees are seeking mediation to resolve how assets should be divided. Alternative Dispute Resolution (ADR) generally refers to arbitration and/or mediation procedures. It offers the disputants an opportunity to circumvent some (or all) of the most complex, ineffective and costly elements of traditional civil litigation. While adversarial litigation is an expensive and very crude zero-sum game for the resolution of disputes, in areas of family relationships, private property and deceased's estate, ADR does not constitute extra-judicial proceedings. An arbitration agreement does not afford a defence to a court action, but entitles a party to apply for a stay of proceedings, under section 9 of the UK Arbitration Act 1996. This paper draws on UK and US examples and argues that facilitative mediation in trust disputes is especially suitable for ADR in contentious trust cases. It also considers whether the UK and Ireland could usefully adopt some of the US’s more developed and structured practices on ADR and mediation.

Arbitration of foundation and trust disputes in Liechtenstein and the United Kingdom—a comparative analysis

Arbitration of foundation and trust disputes in Liechtenstein and the United Kingdom—a comparative analysis

Arbitration of Trust Disputes

Trusts instruments are nowadays widely used for commercial purposes. Although news coverage surrounding offshore leaks have had a negative impact on the public perception of trusts, this is but one very specific aspect of trusts and disregards the fact that trusts are used for many legitimate purposes and with full fiscal transparency. The article explains the characteristics of trusts and the fact that in recent years they have reached civil law legal systems and are no longer confined within their traditional borders of common law. The Hague Convention on the Law Applicable to Trusts and their Recognition has promoted an increased acceptance of trusts in many countries across civil law and common law jurisdictions. Trust disputes broadly fall into three categories: (i) internal trust disputes, i.e. disputes with regard to the trust based on which the trustee holds the subject matter of the settlement; (ii) disputes between the trustee and the beneficiaries regarding e.g. a breach of trust by the trustee, the exercise of power by the trustee; and (iii) disputes with third parties who are not beneficiaries. Only the first two categories are dealt with in this article, as they create interesting and challenging issues to be addressed in arbitration proceedings. Such issues are, in particular, the effectiveness of arbitration clauses placed in the trust instrument which is typically only signed by the settlor. Other specific topics related to the arbitration of trust disputes are the arbitrability of trust matters, e.g. the dispute about information rights of a beneficiary or the application by the trustee pertaining to the interpretation of a trust provision, and the representation of beneficiaries in the proceedings including unascertained, unborn, minor or incapable beneficiaries. As trust disputes frequently involve complex legal and financial issues with connections to different countries and their laws, and with parties and assets in various jurisdictions, arbitration appears to be a viable method to resolve such disputes, in particular as it allows to concentrate the proceedings in one forum and provides for an individually structured process capable of dealing with the specific issues related to trust disputes. The article refers to a number of trust laws and arbitration laws of different jurisdictions that address arbitration in the trust context, providing examples how the specific issues of trust arbitration can be dealt with.

Arbitration of Trust Disputes

Arbitration of Trust Disputes

Advanced Certificate Trust in Trust Disputes

Advanced Certificate Trust in Trust Disputes

Legislative Approaches to Trust Arbitration in the United States

In the United States, the treatment of mandatory arbitration provisions in trust agreements remains murky. This uncertainty may discourage estate planners from suggesting arbitration, even in cases where it would effectuate the settlor’s goals. A number of US state legislatures have already reformed their trust codes to make this area of law more predictable. Although it is impossible to predict the future, it seems likely that other US states will adopt similar provisions in the coming years and may thereby improve the way in which arbitration is used to resolve internal trust disputes. Therefore, this chapter explores the variety, validity, and viability of various legislative attempts to resolve the uncertainty surrounding mandatory arbitration of internal trust disputes. In so doing, the chapter provides a descriptive and normative analysis of various state legislative approaches regarding arbitration of trust disputes and critiques these efforts so as to help legislators going forward.

Step Advanced Certificate in Trust Disputes

Step Advanced Certificate in Trust Disputes

THE ENFORCEABILITY OF ARBITRATION CLAUSES IN TRUSTS

AbstractThis article considers the enforceability of arbitration clauses which are included in trust documentation. It focuses on two main questions. The first is whether internal trust disputes are capable of being settled by arbitration. The article offers arguments in favour of the arbitrability of such disputes. It then addresses the question of whether parties to an internal trust dispute can be forced to arbitrate, rather than litigate, where the trust documentation contains an arbitration clause. It is argued that there are real difficulties in the argument that such clauses can be enforced as arbitration agreements, under the ordinary arbitration statutes, but that the court could potentially enforce such a clause under its inherent jurisdiction to control its proceedings.

The arbitration of trust disputes: theoretical problems and practical possibilities

For many years, arbitration has been touted as the ‘next big thing' in the trust industry, but for all its potential, the practice of arbitrating trust disputes remains undeveloped. One reason for this is that trust arbitration raises difficult questions of principle: are trust disputes even arbitrable? Can arbitral awards bind beneficiaries? And can a tribunal grant appropriate remedies? This article addresses such questions of principle, before going on to suggest that, even without amending legislation, arbitration may well be an effective option for the resolution of many types of trust dispute.

Arbitration of trust disputes

Arbitration of trust disputes

A step forward: addressing real and perceived obstacles to the arbitration of trust disputes

A step forward: addressing real and perceived obstacles to the arbitration of trust disputes

The problems with compulsory arbitration of trust disputes

The problems with compulsory arbitration of trust disputes

Step Certificate in Trust Disputes

Step Certificate in Trust Disputes

It's a real privilege: common interests in trust disputes

This article looks at the application of common interest privilege in trust disputes, specifically where the privilege is claimed between trustees and beneficiaries. It analyses recent developments, in particular the recent judgment of Briggs J in Singla v Stockler, in which he found that the privilege can arise by agreement, by implication from the relationship between the parties or, a significantly, by virtue of the mutual conduct between the parties. This latter test has potentially widened the application of the privilege and may impact on trustees’ ability to resist disclosure requests from beneficiaries in certain circumstances.