Study On The Application Of International Will Trust Laws

Will Trust is a kind of trust established in the form of a will.The early form of Trust emerged from the ancient Egyptian era,and now it is a widely used wealth management method all over the world.The modern trust system originated from the Anglo-American legal system,prevailed in the United States.With the advantages in wealth inheritance such as flexible establishment methods,invisible trust property,as well as the continuous management,the Trust system have been introduced by many Civil Law Countries.In fact,most countries have established their domestic trust legislation systems.However,the provisions of Will Trust system vary from country to country due to the diverse legal systems and choice of legal values between two legal systems.The Anglo-American legal system acknowledged “Dual Ownership”,while the Civil Law System hold the opinion on “One Thing and One Right”,which makes the two major legal systems conflict on the ownership of trust property rights and definition of trust system.The common law system divides the ownership into two parts,"Title Ownership" is attributed to the trustee,and "Substantial Ownership" belongs to the beneficiary.Meanwhile,the Anglo-American Legal System considers it as “Fiduciary Relationship”,while the Civil Law System regards the relationship between trustor and trustee as a pure “Contractual Relationship”.The huge differences between two legal systems make the concepts of Trust respectively diverse in different legal systems,and the differences make countries of two legalsystems shall have different value trend.With the popularity of heritage trusts,the international character of the Will Trust system has also emerged.The institutional differences between trust identification,trust effectiveness,trust management and trust entities are inevitable for the different value choice on the set of Trust System.How to balance and choose the conflict rules and seek a fair and reasonable solution are problems that countries shall face and solve in the field of international trust.The first is the difference in the number of legislation.The author has studied the international Will Trust conflict rules of the two legal systems,there seems to be a clear watershed between them.Countries of Anglo-American have developed the trust system for more than seven hundred years,these countries have a complete domestic legal system and the a relatively effective Will Trust conflict rules.The applicable law selection principle and the application of division method are relatively mature.In contrast,among Civil Law countries,it is quite different.Except for the self-contained Germany,which succeeded directly from the ancient Roman legal system has its own trust system,other countries such as Japan,South Korea and China are still in the digestive stage of localization the Anglo-American's trust system.It is obviously that most Civil Law countries are lack of domestic Will Trust legislation and the application of international Will Trust laws.Although most of these countries have chosen the principles similar to the Anglo-American's when choosing applicable laws,they have not accept division methods in legislative techniques.most of the legislative techniques are not divided.Most of them respectively stipulate the legal application of international trusts and foreign-related wills,but neither of them are detailed in international Will Trust.Second,it is the difference between national legislative techniques.The validity of trusts,the interpretation and the management of trusts are essential when talking to the legal application of international trusts.In terms of choosing applicable laws,the two legal systems use different methods.Countries of Anglo-American Legal System use the "Segmentation Method",when the countries of Civil Law System rarely adopts it and tend to use a general and broad way.The Anglo-American's divide the Will Trust system into Movable Property Trust and Real Estate Trust.Besides,every kind of trust shall apply different applicable law.Take United States as an instance,one shall firstly distinguish the Movable Property Trust and the Real Estate Trust,and then find the correct aspect of trust system like the validity of the trust,theinterpretation and the management of it,and choose the most applicable laws.Things are different in Civil Law countries.For example,Japan,a civil law country that introduced the trust system earlier,did not actually formulate a legal norm for foreign-related trusts.Instead,it set up a trust legal system by reference to a certain legal act or a certain type of contract.Since a Will Trust is set in the form of a will,it shall refer to the provisions on the inheritance of foreign-related wills.Finally,countries have different ideas in dealing with international Will Trusts.There are different identifications on trust among countries.Besides,there are differences in the application of wills,such as the problem of validity of wills.In addition,the value of conflict law diverse.Countries need to balance the relationship of said three aspects in dealing with legal conflicts of international Will Trust.It is reasonable to have variance in the final result.Despite the said differences in legal concepts,it's clear that with the development of international Will Trusts,the principle of choice of the applicable laws in the two major legal systems tends to be consistent.From the current point of view,countries of two legal systems acknowledge the Principle of Party Autonomy and Closest Connection where the absence of chosen laws.Besides,attitudes to the independence of the trust property of the two major legal systems are also the same.That is,trust properties are independent of the trustee's own property and may not be traced by creditors of the trustee,the trustor or the beneficiary.These commonalities make chase the unification of international Will Trust conflict rules among two legal systems possible.In view of this,Hague Convention came into being.Although this convention evades some fundamental issues like the validity of a will,and only fixes the majority of the consensus among the two major legal systems in a form of litigation.It is worth nothing that the formulation of Hague Convention reflects an inclination of the civil law countries,which has attracted many Civil Law countries to join in the convention.The United Kingdom,where the birthplace of the modern trust system,has already accept the Hague Convention as its domestic law.Until now,there are 12 countries have acknowledged the validity of Hague Convention,including Australia,Canada,Cyprus,Italy,Liechtenstein,Luxembourg and etc.Among which are both Civil Law Countries and Common Law Countries among them.The Hague Convention allows certain provisions to be retained by the State Parties,while on the issues of the independence of trust property and the application of the Principle of Party Autonomyand the Principle of Closest Connection shall not be retained by the State Party.Which means if the State Party acknowledges the validity of Hague Convention,it shall at least accept the said articles.Meanwhile,it is also a good news to solve the legal conflict of international Will Trusts around the world.The trust system developed quite rapidly in China.There is only 40 years from the establishment of the first trust institution in China on October 4,1979 until now.As of the end of 2017,the worth of the trust assets managed by 68 trust companies nationwide has exceeded 26 trillion yuan,which increased 29.81% comparing with the last year.Besides,more and more notables choose will trust as a method of heritage treatment,which makes will trust a well-known system.So far,China has developed a domestic trust legislation in 2001 and a specific article in the 2010 Applicable Law to regulate the conflict of international trust.However,there is no relevant rule of Will Trust.Compared with the "Trust Law",the single conflict rule appears to be relatively simple.Although our country accepts the mainstream principle of Party Autonomy and Closest Connection,it does not adopt the “Segment Method”.Article 17 generalizes the conflict rules of international trusts,and there is no more detailed division of the Will Trust and different aspect of trust.Which makes it impossible to apply only in accordance with the conflict norms of a trust or a will,nor to distinguish the trust aspect or legal relation clearly to apply the said rules respectively where there are conflicts of international Will Trust.The situation brings difficulties and uncertainties as to the application of Will Trust.It is obviously that the amount of legislations in China's international trust is far less than that of countries of Anglo-American Legal System where the trust system originated.There is still a large space for us to do.Therefore,after studying the conflict rules of the two major legal systems and international conventions,the author believes that the trust conflict legislation of our country shall be appropriately supplemented from the aspect of institution and litigation on the basis of the existing legislation.Specifically,the most essential is clarifying the application of the International Will Trust conflict and distinguishing it from the general international trust and international will to avoid the situation of being unsuitable.After that we shall improve the legislative technology and application of conflict rules of Will Trusts.In the aspect of improving legislative techniques,the application of the principle of Party Autonomy and the principle of the Closest Connection should be refined.The segmentation method shall be used todivide different aspects and relations of international Will Trust,and appropriately restrict the principle of Party's Autonomy is necessary.Where applying the principle of Closest Connection,the international Will Trust shall be subdivided into different aspects,the most closely related places to which shall be defined.Enhance,the legal application rules of international Will Trust shall be more realistic.To put it simply,when formulate conflict rules,we should consider the distinction the differences between Movable Property Trust and Real Estate Trust,as well as the validity of the trust,the interpretation and the management of the trust to avoid a one-size-fits-all rule of law.