Constructive Trusts in Malaysia: A Methodological Reappraisal

Abstract

In recent times, Malaysian courts have resorted to a ritual incantation of unconscionability and the notion of a remedial constructive trust to justify a declaration of a constructive trust. This methodology for approaching constructive trusts is unhelpful and has led the law to develop in an unprincipled and unpredictable fashion. Our central thesis is that the key Malaysian decisions could have been decided based on pre-existing legal principles upon which English and Commonwealth courts have declared a constructive trust. We argue that future courts ought to realign its methodology with the orthodox tradition of incremental development of the law in this area instead of resorting to broad notions of unconscionability and the remedial constructive trust.

Keywords: constructive trusts, trusts, malaysia, unconscionability, comparative law