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Common Law Trusts by Persons Based in Civil Law Jurisdictions: Does New Zealand Offer A Solution?
Common Law Trusts by Persons Based in Civil Law Jurisdictions: Does New Zealand Offer A Solution?
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*Geoffrey Cone, Cone Marshall, Level 3, 280 Parnell Rd, Parnell, Auckland, New Zealand. Tel: þ64 (0)9 307 3950. Email: gpcone@coneandco.com
1. Equity, A Course of Lectures (CUP 1936) 23.
2. I am grateful to Francisco Müssnich and Henrique Beloch of Barbosa, Müssnich & Aragão, Rio and Sau Paulo for this quote and their assistance on the
Brazilian aspects of this article.
ß The Author (2010). Published by Oxford University Press. All rights reserved. doi:10.1093/tandt/ttq012
178 Articles Trusts & Trustees, Vol. 16, No. 3, April 2010
Costa Rica which has by historical accident its own The question is, given the use of the common law
Anglo-Saxon law of trusts) the fideicomiso arose out trust by persons based in civil law countries, how can
of a 1921 US study on the efficiency of the Latin some reconciliation be achieved? Oddly perhaps, this
American banking system.3 This lead to varying may be done using New Zealand law. This article will
forms being adopted for commercial and banking consider possible solutions under these heads; the
purposes by Panama, Argentina, Colombia, Hague Convention, forced heirship, control and
as well as the more conventional requirements of suc- as any declarations of will, shall not have effect in
cession planning, the maintenance of a family busi- Brazil where they offend national sovereignty, public
ness or patrimony, or the presence of family members order or public decency’. A learned author has made
in a variety of countries. the point that this does not mean a Brazilian court
In this respect the lawyer’s picnic is not only being will not recognize a trust created in another country.7
prepared, the food is on the table. It will be interesting Rather, the question is whether, in a particular case,
6. New Zealand: Cuckoos in the nest in an otherwise promising trust and investment jurisdiction, Offshore Investment, November 2009.
7. Arnoldo Wald,?? P 120, para 117.
8. (1984) 547 50 2d 0143.
180 Articles Trusts & Trustees, Vol. 16, No. 3, April 2010
disposition was governed solely by Florida law, and used to attack a disposition to a trust. Thus, in a
that US law did not recognize the limitations that jurisdiction such as Switzerland, which does not
would have applied in Venezuela. have its own trust jurisprudence and in which a for-
Two cases in New York have made it clear that the eign law proper trust law is likely to be adopted, the
New York courts will refuse to recognize foreign law risks of a successful forced heirship claim are greater.
in the area of forced heirship [Re: Renard (1982)9 and Conversely in countries like New Zealand, which have
patrimony to a trustee ora stranger, over which trust, it does not follow that the trustee’s inten-
he may have little influence tion is of no relevance with regard to the finding
of a sham. Trusts and shams are two distinct
Some guidance may be obtained from Reynolds concepts, and shams should not simply be
[2008] NZCA 122 a decision of the Court of Appeal. thought of as a defective sub-species of trusts.
This case involved a bankrupt property developer, The Court expressed this idea as follows:
i. Is a common intention between a settlor and the ii. Can a valid trust become a sham?
trustees necessary before a sham can be found?
The Court’s opinion was that once a trust is validly
The Official Assignee had argued that it was not created, then a finding of emerging sham should not
necessary to prove a common intention between be arrived at easily, as the beneficiaries have an inter-
both the settlor and the trustees to establish that the est in the property of the trust from its inception. The
trust was a sham, and that the intention of the settlor Court preferred an analysis whereby property that was
to create a sham was sufficient. subsequently transferred into a trust could be treated
The Court made several significant points during as being held under a sham arrangement, but with the
the course of its analysis of the Official Assignee’s remainder of the trust being unaffected, stating that
assertions: ‘unless the later appearance of a sham can be traced
back to the creation of the trust, the trust remains
a. The law requires common intention on the part valid’.
of both the settlor and the trustee in order for a
finding of sham in respect of a bilateral trust. This Once a trust is validly created, then a finding of
requirement ‘fades’ when a unilateral trust is emerging sham should not be arrived at easily
involved, but it would be wrong to claim that
common intention is not a requirement for a iii. What is the relationship between the concept of a
finding of sham simply because in the case of a sham trust and an alter ego trust?
unilateral trust there can be, by definition, no
finding of common intention. The basic concept of the ‘alter ego’ argument is that
b. While it is correct that the question of the trus- the settlor has retained such a degree of actual control
tee’s intention is not relevant to the creation of a over the administration of the trust that the trustees
11. Official Assignee in Bankruptcy in the Property of Gary Martin Reynolds v Alexander McLennan Wilson and Ors., [2008] NZCA 122, para 48.
182 Articles Trusts & Trustees, Vol. 16, No. 3, April 2010
can be said to be ‘mere puppets’ of the settlor and the expedients have been devised, and contained in the
Court is therefore justified in treating the trust as a Trustee Act 1956, to enable trust powers to be shared.
legal nullity, thereby allowing trust property to be
accessible to third party claimants. In New Zealand a series of expedients have
While the Court accepted the idea that factual con- been devised, and contained in the Trustee Act
trol over the trust by someone other than the trustee 1956, to enable trust powers to be shared
managing trustee as if there were no custodian trustee And, if these rules are enshrined in the Trustee Act,
and, the custodian trustee is not be liable for acting it is hard to imagine if a trust deed or a trustee and its
on any properly given direction by the managing trus- co-advisors acting in accordance with provisions of
tee. As far as all third parties are concerned, all the trust deed and in line with the statutory powers,
actions, proceedings and dealings are with the custo- could be said to be acting so as to create a sham.
dial trustee. No person may enquire as to the concur- Moreover, and perhaps more importantly New
investor’s capital and carried on the commercial partnership is registered in the Companies Registry.
activity. It also enabled investors who were squeamish The name of the general partner is the only partner
about usury laws from appearing to be directly publically listed.
involved in lending activities for commercial pur- The limited partnerships advantages are twofold.
poses. The commenda was reinforced by the When used in conjunction with a New Zealand
Napoleonic code of 1807 and it became popular in trust, limited partnerships can mitigate any concerns