Anglo-American Testamentary Trust System And Its References

Testamentary trust is the trust established by the way of will. This system is the combination of inheritance system and trust system. Testamentary trust can preserve or increase the value of the heritage, protect the rights and interests of the disadvantaged heirs, safeguard the basic life of heir who is wasteful or have other bad habits, realize the succession of the family enterprises, expand the will of the deceased to realize the inheritance between generations or leave the legacy for special purposes. Since China's reform and opening policy, personal wealth has been increasing and more and more attention has been paid to civil inheritance,Testamentary trust's unique role in heritage inheritance has been known by people gradually. In practice, cases using testamentary trust to dispose heritage after death gradually increase. Although testamentary trust system was established in the trust law in 2001 in China, relevant laws and regulations give priority to business trusts, only few provisions involve testamentary trust. Further theoretical research is needed on testamentary trust system. In England and America, after centuries of development, provisions on the testamentary trust system are becoming more and more complete and detailed. We should study the Anglo-American testamentary trust system and keep up with their developments and transplant their advantages.This is an effective way of developing and perfecting testamentary trust system in China.This paper is divided into four parts.The first part investigates the origin, modern development and its development characteristics in Britain and the United States of the testamentary trust. Most scholars thinks modern testamentary trust system originated in the USE system of English Equity. Modern testamentary trust have developed from land trust to diversified property trust; from negative trust with the main function of property transfer to active trust with the main function of property management. And modern testamentary presents the development trend of personal trust to the legal person trust.The second part investigates the main content of the Anglo-American testamentary trust system, including testamentary trust types, establishment, change and termination of testamentary trust, the trustee's faith obligations, rules against perpetuities, coordination rules relating to testamentary trust and forced heirship system.In the third part,this paper combining with the provisions of Anglo-American testamentary trust system, analyses and examines the legislation deficiency of testamentary trust system in our country, including lacking of regulations about the uncharitable purpose trust and discretionary trust; too strict with the establishment of testamentary trust; regulations on alteration and termination of testamentary trust which is not beneficial to the beneficiary; too strict regulation on self-dealing and reconsignment; lack of trustee's cautious investment obligations, unqualified term of testamentary trust; lacking of coordinated rules relating to testamentary trust and the way of inheritance of inheritance law.In the fourth part, this paper combining the concrete conditions of our country, draws lessons from relevant provisions of the Anglo-American testamentary trust, puts forward some suggestions to perfect the defects of testamentary trust of our country:set up the uncharitable purpose trust and discretionary trust; diversify the establishment forms of the testamentary trust;specify the way for the beneficiary to excise the rights to change and terminate;grant the court the right to change and terminate in some special circumstances; loose the restrictions on self-dealing and reconsignment to trustee; award the trustee broad investment power as well as cautious investment obligations; set up a fixed term for testamentary trust; coordinate rules relating to testamentary trust and forced heirs hip system, realizing the cohesion and integration between trust law and inheritance law.