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The Worlds of the TrustThe Worlds of the Trust

There’s no one best approach for all jurisdictions

Michael McAuley, Of Counsel - Litigation Group

February 11, 2013

18 Min Read
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Michael McAuley examines the current treatment of trust concepts in non-U.S. jurisdictions

 

In the universe of the trust, there are several different worlds. There’s the civil law world and the common law world. There are also legal systems with mixtures of common and civil law ideas. Neither the common nor the civil law world is entirely clear-cut, though, and subdivisions abound. After examining some very different approaches, I’ve concluded that increased statutory expression would lead to an improved understanding of trust law across all systems and traditions. 

 

Civil vs. Common Law

The trust is generally acknowledged as the creative product of the English common law tradition. Some Scots disagree. Indeed, “the close association of the trust with English law is misleading [and there] would be nothing particularly surprising...

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About the Author

Michael McAuley

Of Counsel - Litigation Group, Carey Olsen

 

Career

 

He was called as an Advocate of the Bar of Quebec in 1983 and a Barrister and Attorney of Bermuda in 2000. He practised in Montreal and was a partner of the law firm now known as Borden Ladner Gervais. Michael joined Appleby in Bermuda in 1998. After teaching five years at Louisiana State University, he returned to Appleby in 2006. Michael joined Carey Olsen in Guernsey in 2011. Michael specialises in both contentious and non-contentious trust and inheritance matters. He has been counsel in many offshore trust disputes.

 

Publications of Interest

 

Michael is the author of the Bermuda chapter in International Trust Laws (Jordans), the Bermuda chapter in International Succession (Oxford University Press, 2010) and the Quebec chapter in Mixed Jurisdictions Worldwide (Cambridge University Press, 2012). His most recent publications are: “Truth and Reconciliation: Notions of Property in Louisiana’s Civil and Trust Codes” in Re-imagining the Trust — Trusts in Civil Law (Cambridge University Press 2012) and “Juridical Personality and Intimacy” (4 Journal of Civil Law Studies 23 (2011)).

 

Other Information

 

Michael is past Chair of the trusts committee of the International Bar Association. He is an Academician of the International Academy of Estate and Trust Law.

 

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