La Trobe Law School’s Associate Lecturer, Tobias Barkley recently attended the 2015 Equity Obligations Group Conference at Melbourne Law School, where he ran a session on ‘Four Conceptual Models of the Trust’.
The common law trust is impossible to define because it is not a coherent concept applying to one institution or relationship but a term that applies to several different institutions and relationships displaying different characteristics. This incoherence produces injustice because the conclusion that an institution or relationship is a trust attracts a range of standard consequences that may not be appropriate for all. This paper proposes that trusts can be disaggregated into four distinct models. These models are distinguished by whether or not they require a fiduciary trustee and whether or not they include positive claims to beneficial entitlement. Once the difference between trust institutions is clarified each model must be evaluated to determine whether it should attract the standard consequences that are currently applied to trusts generally.
Tobias’ primary research subject is the modern discretionary trust and its use as a barrier to prevent property being used to satisfy personal obligations. This stems from a background in private practice estate planning and a Masters thesis arguing that discretionary interests are property according to ordinary trust and property law principles.
He is currently undertaking PhD research into the concept of property, ownership and equitable interests.