Trusts — Australian Style

Mark Leeming (Faculty of Law, Univ. of Sydney Law School) has written a new article entitled What is a Trust?, 7 Trusts Quart. Rev. 5 (2009).

A trust is a relationship, not a legal person, popular misconceptions (reinforced by statutory fictions) notwithstanding. The trust relationship is between trustee, beneficiaries, property and third parties. It interacts with other aspects of the legal system, notably, common law and statute. This article examines some aspects of how that interaction occurs. The first half addresses how common law has long recognised trusts, and focusses in particular on assignments of choses in action prior to the judicature legislation, with a view to assessing what the real impact of that legislation was. Conversely, the second half analyses how the equitable rules in the law of trusts accommodate prohibitions and restrictions at common law and in statute upon the trust property.