Study On The Legal Issues Of Testamentary Trust

Testament trust originated in England,which refers to a system in which the settlor establishes a trust through a will for the designated estate,which is managed and disposed of by the trustee according to the prior instructions of the settlor,and the proceeds obtained are distributed to the beneficiaries.It can take into account the inheritance and preservation of wealth,and achieve people’s personalized property management needs.Due to the development of social economy,Chinese people have more demand for heritage management,and testamentary trust has therefore received more attention.However,since the introduction of the testamentary trust system,the development of testamentary trust has lagged far behind the development of social economy and failed to fully exert its institutional functions.The main reasons for this are that the legislation of testamentary trust in China is not perfect,the legal provisions are too rough,and there are still conflicts with the provisions of the Civil Code.Based on the basic theories of the concept,characteristics,and functions of testamentary trust,and drawing on the beneficial experience of the implementation of foreign testamentary trust systems,this article discusses the establishment form,registration effectiveness mode,trustee qualification of natural persons,and the ownership of beneficial rights after the death of beneficiaries.Combining the actual situation of our country and solving the problems faced in practical operation,the following reasonable suggestions are provided for the improvement of our testamentary trust system.First,relax the current requirement that the form of testamentary trust be limited to written wills,recognize the legality of the establishment of testamentary trusts through audiovisual wills,and respect the freedom of will of the parties.Secondly,the legislative provisions of registration effectiveness doctrine adopted in China are unreasonable,and there are also difficulties in objective operation,hindering the normal operation of trusts.We should change the registration effectiveness doctrine into registration antagonism,balance the relationship between trust publicity and party autonomy,and promote the further development of trust.Thirdly,the provisions on the qualification of natural persons in Article 4 of the Trust Law are ambiguous,resulting in the unclear qualification of trustees.As a trustee of testamentary trusts,natural persons are beneficial to the development of trusts.They should respect the wishes of the trustor and clarify the qualifications and conditions for natural persons to become trustees of testamentary trusts.Fourth,the beneficial right is the right enjoyed by the beneficiary based on the trust document.When the ownership of the beneficial right is unclear after the beneficiary’s death,the principle of respecting the wishes of the trustor,the purpose of the trust,and the priority should be dealt with in accordance with the provisions of the Trust Law.The order of ownership of the beneficial right should be clearly defined as the person designated in the trust document,the heirs of the beneficiary,other beneficiaries,and the heirs of the trustor,with a view to quelling disputes and improving legislation.