1. F Scott Fitzgerald, “The Rich Boy” in All The Sad Young Men (Cambridge University Press, 2006) at 5. See also Janny Scott, The Beneficiary: Fortune, Misfortune, and the Story of My Father (Riverhead Books, 2019).

2. JE Penner, “Private Law Offices” (2020) 70:Supplement 2 UTLJ 299.

3. Lionel Smith, “Massively Discretionary Trusts” (2017) 70:1 Current Legal Probs 17.

4. Representation can also address cases of collective decision-making. See Penner, supra note 2. I shall not address those cases here.

5. In certain respects the powers of a trustee in relation to trust assets are a functional equivalent of a company director’s powers in relation to company assets, though as Jessica Hudson points out, this in no way makes them legal equivalents. See Jessica Hudson, “One Thicket in Fraud on a Power” (2019) 39:3 Oxford J Leg Stud 577.

6. As in the case of pension trusts, where one purpose is to take advantage of expert fund managers.

7. Not all relationships of representation occur within the confines of an office. This is so even when the problem of representation endures. One can, in many circumstances, provide for the function of representation without creating an office. Agency provides a good example. It is a basic principle of agency law that no one who is sui juris is ever required to be represented by another. A principal can peremptorily dismiss their agent, even if this is in breach of a contractual agency relationship. Agents are not office-holders, because one can always terminate the agency relationship and act for oneself instead. There is never a requirement to replace an agent at common law, but when a principal does, it can be on entirely different terms. It is a function of the identity of an office that the constellation of rights, duties, powers, and so on remain the same whoever is appointed to fill it.

8. Whether changes in some features of the package, e.g. a change in the trustee’s charging clause, are such as to change the office into a different one is a question of judgment. See the discussion of the individuation of offices, Penner, supra note 2.

9. Including a ‘legal’ person, as in the case of a trust company.

10. The principle applies somewhat differently in the case of testamentary and inter vivos trusts. In the case of a valid testamentary trust, even if the testator’s chosen trustee declines to serve, the court (or the executor if they have the power to do so) will ensure that a trustee will be appointed. In the UK the trustee ‘of last resort’ is the Public Trustee. Once a trustee is found who is willing to be appointed, the trust will be constituted—that is, the titles to the intended trust assets will be vested in the trustee. In the case of an inter vivos trust, it is up to the living settlor to find someone willing to undertake the trust and accept the titles to the trust assets, thereby constituting the trust. A living person cannot, in this way, just declare a trust ‘in the air.’ Once, however, the trust is constituted, the slogan applies. A replacement trustee will be found if the current one is unable, unwilling, or unfit to act.

11. In the form of the ‘modern’ (i.e. post-17th century) rule against perpetuities. There has been extensive reform of the rule in many jurisdictions. The most recent reform in England and Wales is found in the Perpetuities and Accumulations Act 2009 (UK). The rule has been reformed in British Columbia (Perpetuity Act, RSBC 1996, c 358), Alberta (Perpetuities Act, RSA 2000, c P-5) and Ontario (Perpetuities Act, RSO 1990, c P-9). The rule has been abolished in its entirety in Manitoba, Nova Scotia and Saskatchewan: The Perpetuities and Accumulations Act, CCSM c P33; Perpetuities Act, SNS 2011, c 42; Part XI, The Trustee Act, 2009, being c T-23.01 of The Statutes of Saskatchewan, 2009.

12. See, in general, JE Penner, The Law of Trusts, 11th ed (Oxford University Press, 2019) at 3.44-3.55.

13. Which may be legal persons, e.g. companies.

14. In Alberta, British Columbia and Ontario trusts “for a specific noncharitable purpose that creates no enforceable equitable interest in a specific person must be construed as a power to appoint the income or the capital, as the case may be.” See Perpetuities Act, RSA 2000, c P-5, s 20(1); Perpetuity Act, RSBC c 358, s 24(1); Perpetuities Act, RSO 1990, c P-9, s 16(1).

15. Penner, supra note 12 at 9.26-9.30.

16. See Smith, supra note 3 at 20, n 8. See also Lionel Smith, “Give the People What They Want? The Onshoring of the Offshore” (2018) 103:5 Iowa Law Rev 2155.

17. Smith, supra note 3 at 20, n 8. Similar thinking underlies the ban on self-settled protective trusts. See Penner, supra note 12 at 3.129-3.133.

18. I think this is certainly correct in the case of inter vivos trusts; testamentary trusts raise other considerations, where a personal representative must discharge all the deceased’s debts before any will trusts can be constituted. It is worth noting that the anomalous exceptions to the rule are all testamentary trusts. See Penner, supra note 12 at 9.16-9.20.

19. (1841) 4 Beav 115 (Rolls Ct). See also Penner, supra note 12 at 3.30-3.32.

20. On both justifications see also Paul Matthews, “The Comparative Importance of the Rule in Saunders v Vautier” (2006) 122:2 Law Q Rev 266 at 270-76. It is worth noting that these justifications have not been found persuasive in the United States, where the wishes of the settlor have often been regarded as paramount. Following Claflin v Claflin, 20 NE 454 (Mass Sup Jud Ct 1889), the principle will not apply so long as there remains a ‘material purpose’ of the settlor in the trust continuing. Some other ‘settlor-friendly’ jurisdictions have adopted the ‘material purpose’ limitation on the principle by legislation, e.g., Bahamas Trustee Act, c 176, s 87. In Alberta and Manitoba the rule has been modified to require the court to find that “in all the circumstances at the time of the application to the court, the arrangement appears otherwise to be of a justifiable character.” See Trustee Act, RSA 2000, c T-8, s 42(7); The Trustee Act, CCSM c T160, s 59(7)(b). It is not entirely clear what the extent of the court’s discretion is, but the mere fact that the termination would conflict with the wishes of the settlor does not require the court to disapply the rule; see Knox United Church v Royal Trust Corp of Canada (1996), 110 Man R (2d) 81 (CA).

21. See Richard Nolan, “Invoking the Administrative Jurisdiction: The Enforcement of Modern Trust Structures” in Paul S Davies & James Penner, eds, Equity, Trusts, and Commerce (Hart, 2017) 151 at 152-54.

22. The distinction between ‘internal’ and ‘external’ here is roughly between essential aspects of the legal relationship between the parties and collateral areas of law that shape how parties use that relationship. See Mark Bennett, “Competing Views on Illusory Trusts: The Clayton v Clayton Litigation in its Wider Context” (2017) 11:1 Journal of Equity 48 at 57-58, citing at 57, n 96 Tobias Barkley, Discretionary Interests and Rights to Replace Trustees: Can They Be Property? (LLM Thesis, University of Otago, 2012) at 97-111 [unpublished].

23. A different development occurred in the case of trusts for minor children, which also involved a trustee’s dispositive discretion. In the case of minor children, the trustee was generally given under the terms of the trust and today, unless excluded, is given by statute, a power of maintenance, which allows the trustee to use certain income to support the child during their minority, paying for school fees, food, clothing, and so on. A different power again was typically conferred on trustees, again now on a statutory footing, which allowed the trustee to ‘advance’ capital funds from the trust to those adult beneficiaries whose capital interests would not vest until later (typically following the death of a tenant for life). See Penner, supra note 12 at 10.36-10.52.

24. Ibid at 2.11.

25. Smith, supra note 3.

26. Penner, supra note 12 at 3.12-3.13.

27. Smith, supra note 3 at 27-28 [footnote omitted].

28. Ibid at 29-33.

29. (1970), [1971] 1 AC 424 at 448 (HL (Eng)) [McPhail].

30. Penner, supra note 12 at 3.22.

31. Re T R Technology Investment Trust Plc, [1988] BCLC 256 at 263-64 (Ch D) [emphasis added].

32. [2003] 2 AC 709 (PC) [Schmidt].

33. Nolan, supra note 21.

34. Schmidt, supra note 32 at para 36.

35. Smith, supra note 3 at 22-24, 35-39.

36. For example, Re Manisty’s Settlement (1973), [1974] Ch 17 at 25 (ChD).

37. For a recent review of the rights of objects in Australia, see Jessica Hudson, “Mere Objects in Australia” in Ying Kai Liew & Matthew Harding, eds, Asia Pacific Trusts Law: Theory and Practice in Context (Hart, 2021).

38. Nolan, supra note 21 at 167-68 [footnote omitted] [emphasis added].

39. Most obviously, to turn someone who is the object of a mere power of appointment into a beneficiary of a substantial share of the trust fund.

40. See generally, Penner, supra note 12 at 3.67-3.82, ch 7. Smith (in personal conversation) has said that he thinks the “rot set in” with McPhail, supra note 29, in which the ‘is or is not’ test for certainty of objects was applied to discretionary trusts (see also Smith, supra note 3 at 24, n 19), but I take a more benign view of the decision. McPhail concerned a class of beneficiaries, most of whom could be determined with complete certainty, with a sub-class whose membership (on the reasoning of Sachs J in Re Baden’s Trust Deed No 2 (1972), [1973] Ch 9 (CA)) could be established very simply on extrinsic evidence that they were related to a member of the other sub-classes. Those for whom no such evidence was available were excluded. Nothing in this reasoning is authority for the proposition that the ‘true’ terms of a trust can be more or less at large unless and until the trustees choose to apply the trust assets or the court is called upon, relying upon extrinsic evidence which is not even minimally specified by the terms of the trust instrument itself. In any case, the massive discretions in MDTs concern mere powers, not discretionary trusts and, as I read him, Smith has no objection to the ‘is or is not’ test in relation to mere powers.

41. Nolan, supra note 21, is concerned with the due administration of the trust, but he doesn’t address the question whether the identification of the ‘true intended beneficiaries’ is such as to allow them to invoke the Saunders v Vautier principle and collapse the trust. My strong suspicion is that many MDT proponents would want to have it both ways, that is, being able to identify the ‘true intended beneficiaries’ would satisfy the certainty requirements, but would not then allow them to collapse the trust, pointing to the other trust provisions rendering their interests defeasible and so on, the very provisions which would, of course, have to be ignored or discounted when identifying them as the ‘true intended beneficiaries’ in the first place. For related discussion see Smith, supra note 3 at 29-42.

42. Schmidt, supra note 32 at para 36.

43. Typically where the settlor is also the trustee or protector: see, e.g., Clayton v Clayton, [2016] NZSC 29 [Clayton]; JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev, [2017] EWHC 2426 (Ch) [Pugachev]; Webb v Webb [2020] UKPC 22 [Webb].

44. Briefly, the possibility that in some circumstances they could contribute to a finding that the trust is a sham, Smith, supra note 3 at 45-47; or an invalid non-charitable purpose trust, at 47; their being confidential to the trustees and the disputable grounds for this, at 48-51; and the ways in which they might encourage litigation, at 49-50. A further problem is that depending upon how ‘imperative’ the letter of wishes is, a court may find it is really part of the trust terms: see Chen v Ling, [2000] HKCFI 1356. (See also Taulbut v Davey, [2018] EWHC 730 (Ch) where a letter of wishes was incorporated by reference into a will.) Thus whether a ‘letter of wishes’ forms part of the terms of the trust is a matter of substance not form, that is, it doesn’t matter what the settlor calls the document. For similar judicial reasoning, see Street v Mountford, [1985] AC 809 (HL(Eng)).

45. Smith, supra note 3 at 45 [emphasis added].

46. Ibid at 46.

47. I am not certain how common this practice is, but a perfunctory search of the web found this: “If you have incorporated a trust into your will, or have created a lifetime trust, then it is important to let your trustees know what your wishes are with regards to how you would like the assets of your trust to be managed and distributed. The best way to do this is to set out your wishes in writing or, more specifically, in a letter of wishes to your trustees. Letters of wishes are not legally binding but they do hold strong moral weight and your trustees should have good reason to depart from their guidance. You can include guidance such as ages at which you envisage your beneficiaries receiving capital from the trust fund, what you envisage the trust fund being used for—i.e to fund educational costs or to help with the purchase of a property etc. A great benefit of letters of wishes is that they can be updated as often as you like—if your circumstances change or you simply change your mind—without the need to update your will itself. Letters of wishes should be signed and dated by you and then stored with your will or trust document.” See “Letters of Wishes” (last visited 3 June 2020), online at Birketts www.birketts.co.uk/insights/legal-updates/letters-of-wishes [emphasis added]. Although the italicised passage only mentions wills, I presume the same advice would apply to a trust, given the introductory sentence. See also Breakspear v Ackland, [2008] EWHC 220 (Ch) at paras 3-4, where Briggs J appears to treat written letters of wishes and oral expressions of wishes as standing on the same footing, and at para 6, where he refers to the “flexibility” of “[t]he combination of a broad discretionary trust accompanied by a wish letter.”

48. It seems to me that the idea that updating a letter of wishes is unproblematic rests on a confusion between the trustees ‘consulting’ the settlor or beneficiaries in order to gain information about their circumstances as a preliminary to exercising their discretions in an informed way, which is perfectly alright and commendable, and basically letting the settlor or beneficiaries tell them what to do. The contrast is well brought out by Christopher McCall: “[Y]ou can have trustees bound to consult with their beneficiaries and a protector and then required to form their own views how to act in the light of that consultation.… But not many trusts work like that. Most trustees are if not muppets then at least puppets who charge a high fee for being told what to do and meanwhile safeguarding the funds. That is not what trusteeship was meant to be.” See Christopher McCall, “The Trust as an Enemy of the People” (2013) 19:3-4 Trusts & Trustees 338 at 339.

49. Though they may of course be a beneficiary under the trust.

50. For discussion see JE Penner, “Trustees and Agents Behaving Badly: When and How is ‘Bad Faith’ Relevant?” 128 at 134-36 and Lionel D Smith, “Conflict, Profit, Bias, Misuse of Power: Dimensions of Governance” 149 at 150-54, both in Paul B Miller & Matthew Harding, eds, Fiduciaries and Trust: Ethics, Politics, Economics, and Law (Cambridge University Press, 2020).

51. Re creditors see Pugachev, supra note 43 and Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank and Trust Co (Cayman) Ltd, [2011] UKPC 17. Re spouses see Clayton and Webb, supra note 43. See also Bennett, supra note 22.

52. For ease of exposition, in this section objects will be used as a compendious term for both ‘beneficiary’ and ‘object’ as defined in the text accompanying note 24.

53. It would take pages to provide even a sampling of this work. Perhaps, however, it is enough to say that Oxford University Press has published a volume in its Philosophical Foundations of Law series on contract, torts, unjust enrichment, property, fiduciary law, and most recently, the law of equity.

54. McCall, supra note 48.

55. Adam S Hofri-Winogradow, “The Stripping of the Trust: From Evolutionary Scripts to Distributive Results” (2014) 75:3 Ohio State LJ 529 and Adam S Hofri-Winogradow, “The Stripping of the Trust: A Study in Legal Evolution” (2015) 65:1 UTLJ 1. In the latter paper Hofri-Winogradow considers the way in which recent trusts law reforms alter the ‘corrective justice’ balance between the trustee and the beneficiary in favour of the former. There has also been an analytic philosophical analysis of some of the features of trusts, e.g. Lionel Smith,“The Foundations of Proprietary Remedies” 281 & James Penner, “Value, Property and Unjust Enrichment: Trusts of Traceable Proceeds” 306 both in Robert Chambers, Charles Mitchell and James Penner, eds, Philosophical Foundations of the Law of Unjust Enrichment (Oxford University Press, 2009) and Avihay Dorfman, “On Trust and Transubstantiation: Mitigating the Excesses of Ownership” in Andrew S Gold & Paul B Miller, eds, Philosophical Foundations of Fiduciary Law (Oxford University Press, 2014) 339. Dorfman focuses on cases of representation in the case of those such as children unable to own or manage property which I explored here earlier (see the text accompanying note 6) but which is not my focus here.

56. Roger Cotterell, “Power, Property and the Law of Trusts: A Partial Agenda for Critical Legal Scholarship” (1987) 14:1 JL & Soc’y 77.

57. Mark Bennett & Adam Hofri-Winogradow, “The Use of Trusts to Subvert the Law: An Analysis and Critique” Oxford J Leg Stud [forthcoming in 2021]. DOI:10.1093/ojes/gqaa008

58. JE Penner, Property Rights: A Re-Examination (Oxford University Press, 2020) at 27-28.

59. JE Penner, The Idea of Property in Law (Clarendon Press, 1997).

60. For my own (minor) contribution, see JE Penner, “Intergenerational Justice and the ‘Heredity Principle’” (2014) 8:2 Law & Ethics of Human Rights 195.

61. Ibid at 198-200.

62. Penner, supra note 59 at 74-75, 87-90, 207-10.

63. The claim for this is of course most famously made by Joseph Raz. See Joseph Raz, The Morality of Freedom (Clarendon Press, 1986) at Part V.

64. See the text accompanying note 24.

65. As elaborated by Immanuel Kant, “Doctrine of Right” in The Metaphysics of Morals, translated by Mary Gregor (Cambridge University Press, 1996). All citations are to the Akademie pagination.

66. Ibid at 6:277 et seq.

67. Ibid at 6:276.

68. As regards wives and husbands relationships with the outside world, i.e. beyond their internal marriage relationship, women are not equal to men. For example, they are regarded as dependent upon their husbands, and so can only ever be ‘passive citizens.’ Ibid at 6:314-6:315.

69. Ibid at 6:277.

70. Ibid at 6:278-6:279. For this reason prostitution and concubinage are ruled out as rightful sexual relations, for in these cases the relationship is not one of equal possession of the other’s physical person.

71. Ibid at 6:277 [emphasis in original].

72. Ibid at 6:280.

73. Ibid at 6:281 [emphasis in original].

74. Ibid at 6:282.

75. Ibid at 6:282.

76. Ibid at 6:282.

77. Ibid at 6:283.

78. Ibid at 6:284. Kant makes the same point at 6:283.

79. Ibid at 6:283.

80. Ibid at 6:283.

81. At common law they may delegate their ‘ministerial’ duties, those not involving the exercise of judgment, for example employing a collecting agent to collect rents from those leasing trust property.

82. As a default. In theory a personal power to remove or appoint trustees could be conferred by the terms of the trust, though for obvious reasons this would normally have to be set out in the clearest of terms, though see Pugachev, supra note 43 for a case in which a protector’s powers were held to be personal considering surrounding evidence.

83. Michael O Hardimon, “Role Obligations” (1994) 91:7 Journal of Philosophy 333, provides an interesting discussion of the philosophical issues surrounding the obligations that attach to roles, but he provides no clear indication of what amounts to a role, other than it is related to institutions, in particular the family and the state. For Hardimon, because friendships are not ‘institutional’ in the way that the family and the state are institutions, the obligations of friendship are not role obligations, but that sounds counterintuitive to me.

84. Christopher Essert, “The Office of Ownership” (2013) 63:3 UTLJ 418 at 433 [footnotes omitted].

85. A trustee may also be an object.

86. See, e.g., Paul B Miller, “A Theory of Fiduciary Liability” (2011) 56:2 McGill LJ 235; JE Penner, “Is Loyalty a Virtue, and Even If It is, Does It Really Help Explain Fiduciary Liability?” in Andrew S Gold & Paul B Miller, eds, Philosophical Foundations of Fiduciary Law (Oxford University Press, 2014) 159; Lionel D Smith, “Fiduciary Relationships: Ensuring the Loyal Exercise of Judgement on Behalf of Another” (2014) 130:4 Law Q Rev 608; Ernest J Weinrib, “The Fiduciary Obligation” (1975) 25:1 UTLJ 1.

87. Although ‘discretion’ and ‘discretionary’ are the standard terms used to describe the ‘leeway’ the fiduciary has in exercising their powers, the better word for describing this ‘leeway’ is ‘judgment,’ not discretion, at least in so far as the word ‘discretion’ suggests that the fiduciary has any sort of personal freedom in these cases. The fiduciary is required to choose that course of action which, in their judgment, is in the best interests of their principal; in making such judgments, the fiduciary is to consider only the interests of their principal(s); to put this another way, the fiduciary owes their principal what I have called ‘deliberative exclusivity.’ See Penner, supra note 86 at 166-67 and JE Penner,“Fiduciary Law and Moral Norms” in Evan J Criddle, Paul B Miller & Robert H Sitkoff, eds, The Oxford Handbook of Fiduciary Law (Oxford University Press, 2019) 781 at 789, 791-92.

88. Paul B Miller, “Fiduciary Representation” in Evan J Criddle, ed, Fiduciary Government (Cambridge University Press, 2018) 21 at 24-25 and Smith, supra note 50.

89. For example, in Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press, 2009). Ripstein devotes a full chapter to each of the acquired rights of property and contract, but not to acquired status rights.

90. Ibid at 17 [first emphasis in original; second emphasis added].

91. Ibid at 21 [emphasis in original].

92. Ibid at 72 [emphasis in original].

93. Ibid at 73 [footnotes omitted]. See also ibid at 76-77, where Ripstein uses the example of a person investing another’s retirement savings on their behalf.

94. Ibid at 79 [footnotes omitted]. See also ibid at 192, 365, for similar points.

95. Ibid at 110.

96. Kant does cite as one kind of gratuitous contract one for the “Keeping goods on trust (depositum)” (Kant, supra note 65 at 6:285), but in English law this would be described merely as the bailment of goods for the benefit of the bailor. It is not a common law trust.

97. Ibid at 6:271-6:272 and Ripstein, supra note 89 at ch 5. What Kant was obviously most concerned about in explaining the nature of contract is how the united will or choice of the parties explains how one person can acquire the right to the performance of another. Any person aiming to explain the common law trust as a Kantian contract therefore faces an immediate problem, which might be called the ‘bilaterality in formation’ problem. Typically trusts are settled by one party, the settlor, who transfers assets to the trustee, who undertakes the obligation to hold the trust assets, but not as a performance for the settlor, but for the objects of the trust. As is well known, civilian jurisdictions find it very difficult to fit trusts within their private law, and even when they adopt versions of the trust, their trusts do not have the same legal incidents that common law trusts do; see Penner, supra note 12 at 2.94-2.104 (Quebec and Scottish trusts). Whilst civil law does recognise contracts for the benefit of a third party in a way that the traditional common law does not, trusts are not contracts and cannot be enforced by the settlor qua settlor. Trusts can only be enforced by their objects. Another problem, which is something that as far as I can see Kant never addresses, probably because of the very restricted numerus clausus of the civil law, is on what theoretical basis two parties can enter into an agreement in respect of property so as to bind third party successors in title, which a trust ‘agreement’ clearly does in cases of breach of trust: a third party recipient of trust property transferred in breach of trust will be bound by the beneficiary’s interest unless they are a bona fide purchaser. It is not clear to me that Kant provides the intellectual resources to explain why private law should grant powers of this kind, powers to attach obligations to particular titles, which ‘run with the title’ so to speak. But I think we can put all of this aside in examining whether the trustee-beneficiary relationship is a kind of Kantian contractual relationship, in so far as we are focused on the trustee’s obligations to the object.

98. See JE Penner, “The Beneficiary’s Performance Interest in a Trust: AIB v Redler and the March of the Compensatory Principle” in Richard C Nolan, Kelvin FK Low & Tang Hang Wu, eds, Trusts and Modern Wealth Management (Cambridge University Press, 2018) 277.

99. When investing the trust assets, the trustee must hold ‘an even hand’ between different classes of beneficiaries; see Penner, supra note 12 at 10.3-10.5.

100. As a matter of reality, this might be the settlor whilst they remain alive, or a ‘protector’ (see Penner, supra note 12 at 3.28-3.31) or only one of the trustees. For a disastrous example of a trust company leaving the running of the trust to a family member trustee, see Mennen v Wilmington Tr Co, No CV 8432, 2015 WL 1914599 (Del Ch Apr 24, 2015), adopted, (Del Ch Aug. 18, 2015), aff’d sub nom Mennen v Fiduciary Tr Int’l of Delaware, 166 A.3d 102 (Del 2017)).

101. In private conversation.

102. In private conversation.