Tobias Barkley, ‘Discretionary Interests and Rights to Replace Trustees: Can they be Property?’

Abstract:
… This thesis concerns the implications of a type of asset protection trust where one of the discretionary beneficiaries is given the right to replace the trustee. This “controlling” beneficiary is in an economically advantageous position because he or she has the choice to appoint a trustee who is likely, but not obliged, to prefer his or her interests to those of the other beneficiaries. Asset protection trusts will create an issue in these areas of law if they mean a controlling beneficiary can be in an economically advantageous position but not own “property”. Most existing remedies to this problem operate by directly removing property from the trust. However, these remedies do not always apply and extending them might create further problems because they coercively interfere with private property arrangements. This thesis argues that there is an alternative remedy under established principles of property law, trust law and statutory interpretation that does not interfere with the trust property but instead recognises that the relationship between the controlling beneficiary and the trustee is itself property …

Tobias J Barkley, ‘Discretionary Interests and Rights to Replace Trustees: Can they be Property?‘. Master Of Laws Thesis, University Of Otago, 2012.

Leave a Reply