ABSTRACT
The trust is one of the fundamental concepts of English law which is found in common law jurisdictions generally, but which has not so far gained widespread acceptance in civil law jurisdictions. An essential distinction which must be drawn both in relation to trusts outside the Convention and trusts within the Convention is between the establishment of the trust on the one hand, and the operation of the trust once it has been established on the other hand. It is clearly right that disputes concerning the 'external relations' of a trust should come within the Convention even though the trust was created by will. The Variation of Trusts Act 1958 confers upon English courts power to approve any arrangement varying or revoking all or any of the trusts arising under any will, settlement or disposition. Apart from being subject to applications for discretionary provision or claw-back provisions, a trust may be attacked as being in substance a sham.
