Why it pays to keep an eye on developments in foreign jurisdictions

Robin MacKnight
Robin MacKnight

Technology may very well be the bane of a busy practitioner’s existence. It makes us all too accessible. It deprives us of the solitude we all need to think and recharge. It makes available too much information. Then we have to deal with the follow-up surveys and questionnaires! Fortunately, the editors of Trust Quarterly Review (TQR) are pleased to report that the latest survey of STEP members showed overwhelming satisfaction with STEP publications generally, but only 70 per cent of members were satisfied with the TQR. In fact, about 28 per cent of members were ‘indifferent’.

Among the reasons provided in the survey, we discovered a number of apparent contradictions. The sentiment that surprised us most was the demand for more ‘local’ coverage – from every region where STEP operates. This sense of ‘mimby’-ism (more in my backyard) perhaps supports the demand for quality continuing education, or perhaps highlights the differences between our members’ areas of practice.  The editors are sympathetic to both possibilities and will strive to address them in future issues.

One disturbing fact emerged from the survey: there does not appear to be recognition among our members (in common-law jurisdictions at least) of the near universality of the trust concept. Trust law is generally consistent across the common-law jurisdictions, so that developments in England are transportable to other parts of the world, and issues in New Zealand are likely to be repeated, or perhaps have already occurred, elsewhere.  In fact, a decision of the British Columbia (BC) Supreme Court has recently been released in a case in which the trustees argued mistake. The BC court accepted the reasoning of the UK court in Pitt v Holt; Futter v Futter [2013] 2 AC 108, and the Jersey Supreme Court in In the Matter of the S Trust (2011) JRC 117.

We have much to learn from each other, and the Editors of TQR are pleased to help enable this. We are also cognisant of growing issues affecting our clients across economic classes, both locally and internationally. We all have clients with aging parents and dependent or incapacitated family members and we should be relieved that some of our colleagues are prepared to share their experiences so we can all provide a better service to our clients.

We encourage TQR readers to think about whether the decisions discussed could be applied in other jurisdictions. We note how trust law has developed in emerging financial centres, and how new thinking from new jurisdictions can shape thinking locally – wherever that locale may be. We encourage our readers to ‘think global, act local’!  We welcome your thoughts, your experiences and new articles.

Adapted from Robin MacKnight’s editorial in Volume 12, Issue 1 of the Trust Quarterly Review.

Robin MacKnight is a Partners with Wilson Vukelich LLP in Ontario, Canada. He sits on the Editorial Board of STEP’s Trust Quarterly Review.

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