ABSTRACT
In modern trust practice, a settlor often seeks to create a trust to be governed by the law of and administered in a jurisdiction that is not the settlor’s domicile or residence. The settlor does this by specifying the governing law in the terms of the trust and locating all or part of the trust’s administration in the favorable jurisdiction.
To what extent should a settlor be permitted to use these techniques to select favorable trust law? The question is important because of burgeoning trust practice. Billions of dollars are moving into US states that supply favorable trust law. The question is timely because the American Law Institute is in the process of drafting the Restatement (Third) of Conflict of Laws, and the Uniform Law Commission has appointed a drafting committee to prepare a uniform act on the conflict of laws in trusts and estates.
This Article tackles the central aspects of the question. After analyzing the approaches of the first and second Restatements of Conflict of Laws and of the Uniform Trust Code, the Article proposes a path forward for the new Restatement and the new uniform act. The coordinated drafting of these projects provides an opportunity for the ALI and the ULC to reaffirm the broad latitude – not unlimited, but broad – for a settlor to choose the law governing the trust and, in the absence of such a choice in the terms of the trust, the role of the principal place of administration as a likely indicator of the settlor’s probable intention in many, though not necessarily all, instances.
Ascertaining and honoring the settlor’s intention or probable intention is a core value of US trust law and should be fostered by the corresponding rules on the choice of law.
Gallanis, Thomas P, Trusts and the Choice of Law: What Role for the Settlor’s Choice and the Place of Administration? (July 1, 2023), 97 Tulane Law Review, no 5, pp 805-846 (2023); George Mason Legal Studies Research Paper No LS 23-11.
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