Many argue that the English law of trusts affords too much protection to claimants with proprietary interests, especially those proprietary interests arising by operation of law. For this reason, contemporary scholars suggest that the courts should embark on a more flexible approach by employing the concept of a remedial constructive trust. This article seeks to challenge this suggestion through a discussion of three distinct aspects of the English law of trusts: (i) the ease of finding a proprietary interest, (ii) the defeasibility of such an interest and (iii) the relative certainty that exists in the current state of the law. It concludes with the idea that flexibility does not necessarily need to be introduced by having another remedy which the court may award, and other alternatives may be just as, or even more, viable options to consider.
Azfer A Khan, Certain uncertainty: thoughts against the remedial constructive trust, Trusts and Trustees, https://doi.org/10.1093/tandt/ttx139. Published: 10 October 2017.