ABSTRACT
The trust has a complex provenance: it emerged in English history as early as the 13th century as a means of recognising that a number of people might have simultaneous rights of use over land.1 The rules which sustain the modern trust were developed in the late 18th and 19th centuries principally in relation to family trusts which allocated rights in the wealth of landed families.2 From these beginnings the trust became ever more institutional (that is, founded on a series of strictly observed formalities3) despite their heritage as a tool of the courts of Equity in recognising entitlements to property beyond the common law.4 By the end of the 20th century, the most visible caucus of litigation relating to the use of trusts was concerned with their application to commercial situations.5 In the 1990s the moral heritage of the trust as a creature of ‘conscience’ was reclaimed by the courts in an avowedly complex matter of applying concepts generated for family law situations to the commercial context.6 These questions are central to the operation of the trust as an investment structure.
