Trustee Reasons Testamentary Trust Is Not Established And Remedial Path

It is the first time for the<trust law> to introduce the testamentary trust of common law system to our country, but it only introduces a concept of testamentary trust rather the detailed rules. And the current<inheritance law> also has no rules about testamentary trust. So, it caused many disputes especially the two primary disputes. First, the promise of trustee has been an element to set up the testamentary trust, which is considered by many scholars as a defect of the trust law in our country. They think it is a contradiction that the trustee’s refusal or his ability isn’t qualified to be a trustee can cause the testamentary trust can’t be set up, because the will is a unilateral action. Second, according to the provision of13of the <trust law>, if the trustee does not accept or is inability to accept the trust, the beneficiary may have the right to be elect another trustees, but the testamentary trust has not been established at this time. Why the beneficiary is qualified and has the rights to choose another trustee.This paper will mainly analyze four problems about the two controversies. First, what is the relationship between the establishment of testamentary trust and the trustee? And the nature of the problem is what is the relationship between wills and trusts in the testamentary trust and whether stick to the principle of "the promises of trustee ". Second, what are the specific reasons of the trustee causes the testamentary trust can’t be set up? Third, what is the position of the beneficiary when the testamentary trust cannot be established caused by the reason of the trustee? Fourth, whether the beneficiary has the right to choose another trustee when he has qualifications as a beneficiary? The first and second are a response to the first dispute, and the third and fourth are a response to the second dispute. The four questions are the main contents of this paper.The conclusion of this paper is adhere to the principle of "the promises of trustee " and define the reasons of the beneficiary that cause the testamentary trust cannot be established. And this paper also points out that, when the testamentary trust cannot be established due to the reason of the trustee, the beneficiary who is designated by the testamentary trust will beneficiary’s qualification but do not has the right to choose another trustee stipulated by article13of the trust law. Based on these, we will try to give the right to the court or the executor of will as a way to solve the problem.