Fusion: Can It Encompass the Trust? An Assessment in Light of the Trusts Bill 2017

48 Pages Posted: 6 Nov 2019

See all articles by Anna McLean

Anna McLean

Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: October 29, 2019

Abstract

This paper applies the fusion debate to the most recent reform of the law of trusts in New Zealand, the Trusts Bill. The fusion debate centres around whether a distinct role for equity is needed, or whether the common law and equity can integrate to form one unitary body of law. It aims to achieve coherence in the law – where equitable and common law doctrines aim to achieve the same objectives, it is incoherent to maintain reference to two distinct sets of rules. The Trusts Bill is analysed in light of this – can equity’s traditional flexibility and conscience-based approach be seen in the Bill and in the wider reform process? These values are often used to differentiate between equity and the common law. This paper argues that the Trusts Bill does take incremental steps towards fusing common law and equity even in relation to the trust, traditionally the heartland of a distinct equitable jurisdiction. Flexibility and conscience-based reasoning do not differentiate the law of trusts as seen in the Trusts Bill from common law doctrines. The shift towards a statutorily-defined framework, the language used throughout the Bill and the underlying rationale behind reform all show incremental steps towards fusion occurring even if complete fusion cannot yet be seen. The future of fusion is left to the courts, but the Trusts Bill shows increasing fusion even in this area of the law is possible.

Keywords: equity, common law, trust law, fusion, Trusts Bill, reform

Suggested Citation

McLean, Anna, Fusion: Can It Encompass the Trust? An Assessment in Light of the Trusts Bill 2017 (October 29, 2019). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 25/2019. Available at SSRN: https://ssrn.com/abstract=3477018

Anna McLean (Contact Author)

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington, Victoria 6140
New Zealand

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