ABSTRACT
In both English law and Chinese law, it is an inherent requirement that before an inter vivos express trust (‘IVET’) is properly set up, an owner must manifest a proper intention to deliberately and voluntarily engage with the IVET device. Under English law, it is an orthodox view that the proper intention required is the owner’s unilateral decisive intention. When the IVET device is transplanted into China, legislators take a markedly different approach to the intention rule. That is, a settlor’s unilateral intention cannot suffice, but rather a bilateral intention between settlors and intended trustees is required before a trust relationship can be enlivened. As regards the interpretation of a settlor’s intention, both jurisdictions adopt an objective approach, focusing on the settlors’ manifested words or conducts, rather than their innermost thoughts. However, judicial practice shows that the Chinese courts are disposed to adopt contract law principles in the interpretation of a settlor’s intention, standing in sharp contrast to the approach generally adopted in English law. Furthermore, in contrast to English law, the task of objectively ascertaining a settlor’s intention under the laws of Chinese IVETs is not significantly onerous, due to the statutory requirement that the formal language of trust must be used in the trust instruments …
Jing, Hui, Intention in the Creation of Chinese Inter Vivos Express Trusts (December 1, 2021), in Ying Khai Liew and Ying-Chieh Wu (eds), Asia-Pacific Trusts Law: Adaptation in Context (Hart Publishing, 2022) 349-369.
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