Irit Samet: The Posthumous Trust: From Dead Hand to Mortality Management

Irit Samet, is a Professor in The Dickson Poon School of Law, and will be presenting the sixth paper of Michaelmas Term: “The Posthumous Trust: From Dead Hand to Mortality Management”, in a session co-hosted with the Obligations Discussion Group. 

This seminar takes place in Massey Room, at Balliol College, University of Oxford (Broad St, Oxford OX1 3BJ) at 5:00pm on Tuesday 19 November.  (Please note the different day of the week.)

Abstract:

Ownership ceases with death. Like all powers – to vote, enter a contract or marry, the
power to exert private control over property dies with the owner. This truism, however, never
stopped owners from trying to influence (or dictate) the afterlife of their property. In allowing
trusts to operate after the final departure of the settlor, equity provides them with a most
powerful tool for doing so. And this, the way in which the trustee must follow the deceased
settlor’s wishes triggers a unique and serious ‘dead hand’ problem. For while heirs receive
that share of the estate the legator chose to bequeath to them (in CL systems at least), once
they come to own it, they are free to do with it as they wish, and enjoy the autonomy,
economic advantages and freedom that ownership confers. The equitable title bestowed on
beneficiaries, in contrast, is a weak form of ownership that is severely restricted by the
trustee’s management powers as these are designed by the (now dead) settlor. A serious
tension between two perspectives on the donative trust is thereby revealed: whereas one
sees it as geared towards benefitting the beneficiary, the other envisions the trust as an
instrument for realising the settlor’s plans for her property. And while different systems tend
towards adopting one or the other, the tension between these points with f view remains in
the background and upsets the theory and practice of trust law regardless of which one is
adopted.

From the beneficiaries’ perspective, the posthumous trust can be seen as an
exercise in overcontrol or an expression of a pathological refusal to reconcile to the fact of
one’s mortality. Powerful arguments have been put forward on why the owner’s death should
wipe the slate clean for all property, thus freeing resources to serve new ideas and fresh
agendas. Given the serious challenge of legitimacy for trust that operate beyond the settlor’s
life, I wish to offer two supplementary ways of conceiving these trusts as a justifiable
extension of the power of ownership: one is to see these trusts as expressive of the stake
people have in what happens in the world after they die; the other is to conceptualise them
as a valid response by owners to the consciousness of mortality (rather than as a
pathological attempt to retain the power of the living after one’s death). My conclusion would
be that while such explanation can work to justify granting owners the power to settle such
trusts, they must be very carefully moderated by placing them under limits such as the
perpetuity condition.

This event is open to anyone. No registration needed.

Pre-reading is desirable and strongly suggested, but not a requirement to attend.

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