THE NATURE OF THE TRUST BENEFICIARY'S INTEREST

Abstract

The authorities surveyed in this article suggest that there are two alternative attitudes to the problem of whether a beneficial interest in a trust property exists. The first approach assumes that all trust problems necessitate the adoption of reasoning that is applicable when the working operation of the trust is called into question. The second approach often reaches out to the most convenient precedent at hand in order to achieve the desired results, repelled by an in rem – in personam dichotomy obfuscated by pedantic excursuses into the Latinisms. The result is an inconclusive debate marked by incongruous positions: one side holding firmly to the view that the beneficiary has a right of action only against the trustees; the other prepared to accord “substance” to the beneficiary’s interest and give it effect thereby. D.W.M. Waters argues that where the problem concerns the working of the trust machinery, it would be better to adhere to the view that the beneficiary asserts his or her right of enjoyment in the trust property through action against the trustees to ensure that they faithfully, and without negligence, exercise their fiduciary role of administration.