On Trusts, Hypocrisy and Conscience

Abstract

In this paper, I suggest that taking seriously the way in which the trust is founded on a duty of conscience has far-reaching ramifications for the appropriate attitude towards new forms of trusts that are designed to allow people to enjoy the benefits of ownership without incurring the duties that come with it. The morally freighted concept of conscience that lies at the heart of trust law means that every claim against trustees invokes a demand that the trustee abide by the requirements of their conscience. The conditions on the right to blame others for a moral wrongdoing, and the relationship between blaming and suing in the context of trust law, lead to the conclusion that, in novel forms of trust that are geared towards the creation of a morally bankrupt “orphan property”, beneficiaries do not have moral standing to sue the trustee for a breach of trust.