… This study firstly examines the historical development of the nature of the beneficiary’s right under a trust and then follows on to test the theoretical foundation of McFarlane and Stevens’ argument, attempting to demonstrate that the beneficiary’s right is to be classified as proprietary rather than sui generis. In order to achieve this effectively, two ways of supporting the proprietary nature of the beneficiary’s right are identified. The first solution is based on the idea of an indirect right in rem, which means considering the beneficiary as holding a right that attaches indirectly to the trust asset. The second approach is to see it as an interest in a sub-property, thereby identifying the beneficiary’s item of property as ‘something’ that is separate and distinct from the trust asset, corresponding to the proprietary right of the trustee. More specifically, in the latter case the beneficiary holds a proprietary right in the trustee’s proprietary right in the asset.
The primary objective here is to highlight the idea that, while the persistent right theory (suggested by McFarlane and Stevens) raises doubts for conceptual, methodological and pragmatic reasons, the alternative concepts of an interest in a sub-property and that of an indirect right in rem (both conferring proprietary status to the beneficiary’s title) are capable of explaining what power a beneficiary can have over the asset, and also have the advantage of being consistent with English legal taxonomy …
Elena Christine Zaccaria, ‘The nature of the beneficiary’s right under a trust: proprietary right, purely personal right or right against a right?’ (2019) 135 Law Quarterly Review (July) 460.