1 Introduction
Equity & Trusts (E&T) modules are widely considered ‘difficult, obscure and even boring’ (Hudson Reference Hudson2016, p. xxv). Many E&T teachers strive to change this perception (ibid.; Watt Reference Watt2018, p. x). Anyone tasked with teaching E&T should seek to engage students by helping them envision its relevance to their own lives and aspirations. This concern is amplified during contemporary conditions of intensified economic inequality as many underprivileged law students will feel experientially distant from a subject that is commonly associated with the interests of the wealthy.
This article proposes a method for stimulating engagement by introducing trusts in a way that centres the issue of economic inequality. If trusts play a significant role in economic inequality, and many of today’s law students are impacted by it, then we might enhance engagement in the subject by leading them into learning the doctrine through its contextualisation within that familiar social problem. This approach will help students gain the understanding of law they hope to acquire, and, in turn, facilitate their careers. Hopefully, moreover, they will be emboldened to contribute their learning to improving social conditions which affect their communities.
Roger Cotterrell’s critical and socio-legal contributions to consciousness about trusts inform this article’s method. His insights influence trusts scholars who build upon them (Herian Reference Herian2021, p. 119; Piška and Gibson Reference Piška, Gibson, Piška and Gibson2024). They inspire the design of at least one E&T module (Piška and Gibson Reference Piška, Gibson, Piška and Gibson2024, p. 1). This is not the first publication to continue Cotterrell’s work on trusts. It is the first to propose a method through which his work can enhance our teaching of trusts in an approach to promoting engagement specifically through the context of economic inequality.
Part II elaborates upon the need for that approach. Part III outlines Cotterrell’s critical and socio-legal inquiry which inspires the proposed contextualising method for promoting student engagement in trusts. Part IV conveys how that inquiry would inform our method for introducing trusts to students. This method begins by posing the problem of drastic economic inequality, which characterises our societies, in relation to the potential role of trusts law. It then introduces the interpersonal relationship between parties to the trust, by focusing on how the trust traditionally reversed the power dynamics between beneficiary and trustee. It goes on to encourage students to think about how, as a corollary of this reversal, the beneficiary’s trusting may be displaced, to some extent, from the trustee to the law and its institutions. If some beneficiaries enjoy an institutional relationship with the law, characterised by trusting that one’s wealth will be protected by it, the question follows as to whether, to a serious extent, this perpetuates a tremendously unequal social relationship between classes. Part V concludes that the Cotterrell-inspired method for introducing trusts within the economic inequality context can engage students in learning about trusts in real and relatable terms, with a view to career advancement and, potentially, contributions to positive legal change.
2 The challenge
Pedagogical literature shows that students learn more effectively when meaningfully engaged in a subject – that is, when they are ‘active’, ‘sense-making’ and ‘feeling’ in their participation (Harper and Quaye Reference Harper, Quaye, Harper and Quaye2009, p. 5). This is more attainable when students find value in pursuing learning, rather than passively absorbing and superficially using information to comply with instruction and avoid negative outcomes (Groccia Reference Groccia2018, p. 14). Engagement is enhanced when the subject matters, and seems beneficial, to students (Johnson Reference Johnson2007). It can be promoted by relating content to their lived experience so that ‘academic knowledge moves quickly from something theoretical to something … tangible and relevant’ (Chen Reference Chen2017, p. 5). This can be especially effective when students are invited to confront familiar problems within the worlds in which they live (Freire Reference Freire2005, p. 72).
Trusts teachers have urged contextualisation to foster engagement. They have typically emphasised the trust’s significance in commercial law practice (Moffat Reference Moffat1992, p. 123; Quarrell Reference Quarrell1991, p. 237; Tang Reference Tang, Bant and Harding2010, p. 148; Tan Reference Tan2017, p. 271). Graham Moffat observed that many students consider themselves ‘unwilling conscripts’ into ‘something they believe will be of scant relevance to them in their future careers’ (Reference Moffat1992, p. 123). Tan advocated, more recently, for greater focus on the ‘transactional’ aspects of trusts practice and stressed ‘that the subject matter of the trust often takes the form of property quite apart from land, eg company shares, choses in action, money etc’ (Reference Tang, Bant and Harding2010, p. 129). Greater pedagogical focus on trusts’ significance for investment in practice, John Quarrell insisted, was needed because, as was true in the 1990s, ‘more people own property’ and future lawyers ‘will have more money for investment’ than their predecessors (Reference Quarrell1991, p. 237). Surely when students conceive the subject as serving their interests, including career development, they are more likely to find it engaging, which will benefit their learning.
Too much, however, has changed over the decades for today’s trusts teachers to assume the stereotype of the ‘traditional’, ‘upper middle-class’, law student who possibly has ‘experience at “daddy’s firm”’ (O’Connor Reference O’Connor2025, pp. 217, 233). Ordinary people across the common law world today are poorer than in living memory (Lynch Reference Lynch2020). Law students are now more likely to be underprivileged and from backgrounds which have faced significant barriers to higher education and the legal profession (Alexander Reference Alexander2023). A deteriorating job market has haunted many law graduates for quite some time (Tamanaha Reference Tamanaha2012, p. 172; Douglas and van Hattem Reference Douglas and van Hattem2016, p. 118). A recent BBC article (Buccieri Reference Buccieri2024) entitled ‘Law Graduate Couldn’t Get a Barrister or Barista Job’ illustrates this experience in contemporary Britain. Rachael O’Connor’s recent study finds that many working-class students lack a sense of belonging in law schools, face barriers to ‘unpaid and underpaid internships’ as well as ‘access to support’, and struggle with ‘imposter syndrome’ (pp. 223, 237). ‘Widening participation’ programmes aim to increase inclusion of groups who have historically been excluded from higher education. The data about retention, grades and employment opportunities indicates that ‘“access” is where progress regularly ends’ (p. 218). If educators are serious about inclusion, then experiences of underprivileged students should influence their approaches to teaching.
One can imagine that trusts’ difficult and uninspiring reputation would be compounded for students who own minimal property, and spend considerable time working to support themselves, while incurring considerable debt to pursue their education, and are unlikely to inherit much. This contrasts with topics that are most readily ‘harnessed in teaching’ through immediate connection with personal experience, for example, ‘formation’ and ‘breach’ of contract (Hyde Reference Hyde, Swain and Campbell2019, p. 99). The ‘disconnect between working-class students … and the support they receive to pursue legal careers post-university’ (O’Connor Reference O’Connor2025, p. 233) might indicate a relative unlikelihood of their instinctive enthusiasm for trusts. That sense of alienation may go beyond lack of personal familiarity with trusts. Some of O’Connor’s participants expressed ‘astonish[ment]’ at the amounts of financial support fuelling the futures of their more privileged peers. This reinforces sentiments of imposter syndrome (ibid.). It would be naïve to deny that feelings of ‘deficit’ which distance many working-class students ‘from their law school community’ (p. 231) would, for many, extend to subjects traditionally associated with the interests of the wealthy. If trusts are often perceived as concerns for ‘trust fund kids’ (see, e.g. Burch Reference Burch2024), whose paths in life present fewer and less severe obstacles, then it would be difficult for many financially embattled law students to find them interesting.
Yet underprivileged students can benefit from learning trusts. First, it immediately affects their grades given that in most common law jurisdictions they must study trusts.Footnote 1 Second, understanding trusts is advantageous for their career prospects, especially if they lack close connections into the profession. Trusts arise across law practice more broadly than for elite wealth management endeavours. Solicitors in all practice areas manage clients’ trust accounts. Trusts figure significantly into family, elder, employment, land, commercial and charity law practice. Third, graduates might direct their understanding and skills into avenues through which they can combat inequality. Consciousness about the role trusts play in economic inequality may empower underprivileged students to counter narratives of inadequacy with the ‘value and expertise [they] bring to the study and practice of law’ (O’Connor Reference O’Connor2025, p. 241). Graduates who are learned about ‘estates planning’ may eventually provide those services to marginalised communities who have struggled to access them (Spivack Reference Spivack2019, p. 211). Former Justice of the High Court of Australia Michael Kirby, however, observes that, without change, ‘the recent over-supply of law graduates is unlikely to cure the shortfall in [legal] services’ (Reference Kirby2016, p. 115). Law schools can nonetheless help students build constructive careers, including through clinical opportunities and ‘expos[ing] dark corners of the law … that [should be confronted] and reformed’ (ibid., p. 129). Graduates who are conscious of ‘the risk of perpetuating inequality and concentrating economic and political power’ (Sitkoff Reference Sitkoff2014, p. 644) could contribute toward ‘re-deploy[ment of] legal skills’ to address social problems including ‘distributional injustices’ (Menkel-Meadow Reference Menkel-Meadow2013, pp. 158–59). Potential benefits of understanding trusts for underprivileged students include applying their learning to advance vocational prospects and, hopefully, social justice.
To those ends, this article proposes a method for engaging students in the subject by introducing trusts in a way that rejects the ‘banking’ model of education in which teachers merely ‘deposit’ information into students’ minds. It supports a ‘problem-posing’ model (Freire Reference Freire2005, p. 72). Teachers can help students who feel disconnected from trusts to navigate the subject by inviting them to contemplate the wider context surrounding the subject and their own lives. That context is characterised by economic inequality and various kinds of relationships that concern parties, the law and groups. By encouraging students to envision this wider picture, and themselves within it, law teachers can promote ‘[e]ducation as a practice of freedom’, which sees people as part of the world (ibid.). This paper contributes that kind of pedagogy to the trusts teaching literature. Its immediate aim is to enhance engagement in learning the law. The method will hopefully, in turn, prepare students to constructively contribute to their communities.
3 Cotterrell’s approach
It might sound paradoxical to suggest that students, many of whom are most interested in learning the law itself, how to apply it and skills that advance employment prospects (Morrison and Guth Reference Morrison and Guth2021, p. 54), can be assisted to engage in learning trusts through a critical and socio-legal approach. As Alex Green acknowledged, ‘inculcation of purely critical perspectives, to the exclusion of orthodox legal interpretations or justifications, would almost certainly prevent students from developing into technically competent lawyers’ (Reference Green2023, p. 398). It would be problematic for students’ ‘knowledge of relevant legal doctrine [to] be undercut’, not least, ‘as against market expectations of that knowledge’ (ibid). This article aims, however, to help students engage in learning – and better understand – law rather than tell them what should change. Still, enhanced engagement might encourage students to form their own juristic perspectives about whether the status quo is optimal and, if not, how it might be improved. Increasing economic inequality in societies in which students live points in favour of introducing trusts through this context to make the subject more relatable and thus more engaging.
This article’s method is influenced by the approach designed by Nick Piška and Hayley Gibson during their convenorships of Kent Law School’s (KLS) E&T module. In the preface to the edited volume, Critical Trusts Law: Reading Roger Cotterrell, they recall having set ‘Cotterrell’s articles on trusts as “core reading” … for many years’ (Reference Cotterrell, Piška and Gibson2024, p. 1). They recount that:
‘Introducing trusts to undergraduate students might appear daunting enough, but introducing the trust idea, trust doctrine, and a critique of the trust form simultaneously has been challenging and exhilarating in (almost) equal measure. Each year we find different nuances and different points to emphasize in Cotterrell’s works as the legal, social, economic and theoretical milieu has shifted—and each year our students bring different questions and ideas to the seminars and assessments’ (ibid.).
The volume contains no chapter about teaching. Piška and Gibson’s reflection on doing so, however, attests to both the challenges of promoting critical thinking about trusts while teaching its doctrines, and Cotterrell’s ongoing capacity to elicit intellectual engagement. This article does not, however, simply echo KLS’s approach.
It advocates an introductory problem-posing technique that could be adopted, or adapted, into existing modules. KLS’s module traverses important Equitable doctrines and remedies, beyond fiduciaries and trusts – for example, estoppels and vitiating factors – which many schools cover in contract and property modules. Trusts, at KLS, is taught over a few weeks in a deeply theoretical fashion (Kent Law School 2022, pp. 20–33). E&T modules in many other schools consist predominantly of fiduciary and trusts law and focus more on deepening understanding of these doctrines through problem questions (see e.g. School of Law QMUL 2025). This article’s method does not require overhauling of either kind of module. Rather, it would introduce trusts through the context of their relation to economic inequality with guidance from Roger Cotterrell’s critical and socio-legal insights.
The method could, but need not, be extended to incorporate critical and sociological inquiry throughout the module. Cotterrell’s work could be prescribed as required or further reading in a module designed to assess students in relation to the inequality theme. Students could be given the option to undertake assessment concerning inequality and trusts which would respond to a question about Cotterrell’s insights. The proposed method would, however, work even in a predominantly doctrinal and problem question-based module. That is because it introduces trusts through context to enhance learning through engagement and thus gives students opportunities to understand doctrine in the foreground of relatable aspects of the reality in which trusts operate. Module convenors could design or alter a KLS-style module or a more doctrinal and problem question-based module. The approach can be integrated into either kind of module and its effectiveness cyclically tested, extended or amended pursuant to experience and experimentation (see Wangerin Reference Wangerin1997).
Cotterrell taught trusts for several years. This led to three publications (Reference Cotterrell1987, Reference Cotterrell and Goldstien1992, Reference Cotterrell1993), which ‘map out new ways to view trusts in a socio-legal perspective at a time when trust law had received very little modern critical socio-legal scrutiny’ (Reference Cotterrell, Piška and Gibson2024, p. 223). ‘Property, Power and the Law of Trusts’ (Reference Cotterrell1987, pp. 83–88) argued that trusts doctrine embodies a notion of moral trust which conceives the beneficiary as vulnerable to the power vested in the trustee, and, so, affords the beneficiary protection against the trustee. This practically empowers beneficiaries with property rights that are free from significant burdens which accompany common law property. The reversal of power relations, however, is only possible when beneficiaries can trust legal systems to protect them. ‘Trusting in Law’ (Reference Cotterrell1993, pp. 78–90) inquired further. The traditional moralistic conception of trusting which underpinned the institution of Equity’s trust, he reasoned, ceded ground to arrangements in which ‘big’ trusts increasingly serve as ‘property receptacles’ and for purposes of ‘capital management’. This shift produces a reconceptualisation of the trust in which the ‘moral distance’ between trustee and beneficiary is filled with managerial emphases. The possibility that some people, and groups, in society are more able to practically trust in trusts law to protect their interests, and are thereby empowered more than others, is key to the contextualisation through economic inequality for which this article advocates in teaching trusts.
Jurisprudence, for Cotterrell, is not an endeavour to understand law merely on its own terms, but ‘a theoretical tool oriented solely towards helping jurists to fulfil their practical professional tasks’ (Reference Cotterrell2018, p. xi). It is, therefore, ‘concern[ed] for the general well-being of the idea of law as a value-oriented structure of regulation’ (ibid., p. xii). This theoretical venture must be undertaken ‘with a primary focus on practical regulatory issues in the particular legal system or systems that [jurists] serve’ (ibid.). If the jurist’s ‘practical’ concern with law extends beyond application to individual scenarios, jurisprudence must be informed by sociology – a ‘systematic, sustained, empirically oriented study of the social’ – because ‘the [social] context in which law exists is changing in very important ways and law itself seems to be assuming new forms or is, at least, being used in strikingly new ways’ (ibid.). ‘These changes, in the context and forms of law’, Cotterrell adds, ‘open a space for new intellectual resources in juristic thought’, and ‘undermine old certainties, especially about the structures of legal authority and the nature of legal systems’ (ibid.). This insight drives the need for the article’s method in response to the increasing economic inequality that constitutes the social reality in isolation from which many today would find it difficult to engage in learning about trusts.
If legal doctrines (like those concerning trusts) are not simply ‘self-justifying edifice[s]’, they must be ‘social construct[s]’:
‘The critical logic of legal doctrine is a logic in terms of social and political causes and effects of doctrinal developments. The form and content of legal doctrine is to be explained in terms of the empirical conditions in which law as doctrine and legal institutions exist in society. Thus critique of law is in its fundamentals a sociological analysis of law: the patient quest to explain its doctrinal and institutional characteristics as social phenomena having empirically identifiable social causes and social effects’ (Cotterrell Reference Cotterrell1987, pp. 78–79).
A critical-sociological approach, therefore, interrogates the point and implications of relevant legal doctrines or institutions within the society of human subjects who live under them. This consciousness drives the first stage of the article’s method, which promotes discussion about whether the trust’s commonly known usages might bear upon the rampant inequality that surrounds us.
Sociological jurisprudence, being value-oriented, must also be critical. It cannot be as simple as observing cause-and-effect relationships between law and social factors. It means asking questions like: ‘why does this doctrine exist? What is it for? Why has it taken its particular form and content?’ (Reference Cotterrell1987, p. 78). Cotterrell writes that ‘critique is the method by which knowledge proclaimed as “true” is revealed as partial’ (Reference Cotterrell1986, p. 107). It enables us to account for ‘timeless matters’, that neither law itself nor understanding it in light of social observations can resolve, which include ‘moral and philosophical issues [concerning] the [individual’s] responsibilities [to their] society, and the moral worth of a social order judged against the possibilities of realising the autonomy and authenticity of individuals within it’ (ibid., p. 108). Jurists pursue better understanding and betterment of law, through critique and social inquiry, for those who live under it (Reference Cotterrell2018, p. 31).
For Cotterrell, we must take legal doctrine as it self-presents and unpack the ideas informing it which have pre-legal meanings understood by legal subjects:
‘A useful strategy in developing a critical analysis of any area of doctrine is to start from its most central and fundamental ideas and to ask what social … significance they may have, and what resonance such ideas may have beyond the world of professional legal practice in the consciousness of ordinary citizens’ (Reference Cotterrell1987, p. 81).
Otherwise, we are obstructed from understanding how law serves aims to which it is directed:
‘Legal doctrine has obviously instrumental aspects. It guarantees and structures the exercise of power, facilitates governmental and private administration, allows for reliable calculation and accounting in economic and other transactions by citizens, state agencies and public and private institutions of all kinds, and provides a framework for the resolution or containment of disputes and the channelling of expectations to avoid conflict. It only does these things, however, when it lives in the consciousness of those who are supposed to be affected by it or who are entrusted with its application. How significant doctrine is depends on how it is interpreted and applies … in a wide variety of circumstances …’ (ibid.).
To think critically and sociologically about law means to unpack the familiar concepts which can be found inside law and inquire into how legal form puts those concepts to work in the social world in which law is applied. Our effort to promote engagement is facilitated by this kind of inquiry through the second element of our method, which focuses on the implications of the way in which moral concepts are translated into fiduciary and trust doctrine.
Law embodies ‘everyday’ concepts and not only directs them toward particular social purposes. It also upholds kinds of societies:
‘[L]egal doctrine contains concepts and principles which relate in direct or indirect ways to wider currents of thought, to ideas which are part of the everyday climate of thought of citizens. The concept of “freedom of contract” is not just reflected in legal doctrine but is part of the fabric of thought of a free enterprise society – an element of ideology in such a society’ (ibid.).
If contract law is informed by ordinarily accepted moral notions of freedom, promising and quid pro quo, then its enforceability through legal doctrines would ostensibly serve the social purpose of promoting respect for those values. It goes further by putting common law’s commitment to its understanding of ‘freedom of contract’ at the heart of our private law systems. In turn, this value is entrenched at the heart of our societies. Law takes moral concepts which are commonly accepted by members of society and projects versions of them back on to society as norms that we are instructed to uphold. The third element harnesses this perspective toward engaging students through the reality of the enforcement of obligations of trust which practically empowers, at least some, beneficiaries.
This kind of insight enables the critical and social inquiry to take a further step: to analyse what happens through translation of pre-legal concepts into law and what this means for societies in which legal subjects live, with moral concern for people and their futures. Critical thought should be moral critique in taking up ‘responsibility … to evaluate all action and institutions in terms of the need to confront and undermine [the] duality [‘of human subject and social object’]’ (ibid.). That duality concerns ‘the isolated individual confronted by “society” or social institutions in relation to which [one] seems powerless and uncommitted’ and results in ‘alienation and oppression’ (ibid.). The labour of critically theorising law is enabled by the sociological aspect of the inquiry: ‘Sociological analysis is indispensable to explain the social setting in which moral dilemmas present themselves and so to show the range of practical choices and social costs and consequences of moral and political decisions’ (ibid.). The moral objective of a critical inquiry into law depends on sociological analysis because law operates within the social world in which it relates to its subjects.
Our method, in its fourth element, encourages students to consider whether the empowerment of some beneficiaries vis-à-vis other beneficiaries contributes to increasing economic inequality between social classes. The immediate aim is to engage students through connecting the subject to their experience within the world around them. Some, however, might be further inspired by the question of whether trusts embody translations of moral concepts into legal conceptions that produce socially immoral outcomes.
Critical socio-legal inquiry enables enhanced consciousness of, and ability to challenge, ‘assumptions about the nature and functions of law, about the social context in which law exists and which it is held to regulate and influence, and about the way legal doctrine is developed and legal institutions operate’ (ibid.). Then ‘what is … practical may be decided by quite different criteria’ (ibid., p. 79), to better address moral concerns about the state of the legal and social order for people living within it. Cotterrell’s approach entails critique of legal doctrines so that we can understand their roles in society, how they play these roles and potentially how they could be improved for society. For the present endeavour of enhancing engagement in trusts modules, however, the immediate point is that understanding can be enhanced by relating legal concepts to the learners’ lives which are surrounded by a society of inequality in which one might find trusts playing a role.
4 The method
The technique is informed by Cotterrell’s critical and socio-legal approach specifically concerning trusts. It introduces trusts in the context of economic inequality through four steps. The first initiates a discussion that poses the question of trusts’ role in relation to the social problem of economic inequality. Second, the interpersonal relationship of trusting between the beneficiary and the trustee is introduced as an entry point into studying the law of trusts. At this point, through Cotterrell’s ideas, students can consider the reversal of power dynamics carried out traditionally by doctrines of trusts which govern the trustee, as well as whether this holds true for all, or rather just some, beneficiaries. Third, the conversation moves to Cotterrell’s suggestion that this reversal tends to shift the beneficiary’s actual trusting from the trustee to the law itself. Fourth, students are invited to consider whether and, if so, how the empowerment of some beneficiaries rather than others, in relation to their trustees and their ability to meaningfully trust in the law of trusts, shapes the relationship between classes in society which is characterised by severe economic inequality. This line of inquiry would structure, and promote engagement through, discussions in the early lecture/s and tutorial/s. It could even be adapted further into coursework questions about the relationship between trusts doctrine and inequality.
4.1 Problem posing
Teachers can introduce students to the trust by posing the problem of its relationship with economic inequality. Let us focus on students’ existing consciousness about what trusts are, or can be, for the societies in which we live. Teachers can start with a conversation about the contexts in which students think trusts typically operate.
We should confront the distance between the worlds of trusts and those of our many students. Begin by asking students to think about their experience with trusts. Have they ever created a trust? Have they ever held property on trust? Are they set to benefit from a trust to their knowledge? We need not insist that students vocally answer these questions. We want them to think about these questions.
Then teachers can ask students to share answers to a broader question about whether they consider trusts particularly relevant to their lives. This will likely reveal that many tend not to perceive trusts as having much immediate significance for them, which provides a pivot point into how others use trusts. Some students might quietly or explicitly note that their own family uses trusts. Some might know they are beneficiaries under pension trusts which would provide a discussion point to which we return further down.
We can ask why people use trusts. Some may suggest people create trusts to pay less tax, keep property in their family or facilitate investments. Many students know that people create trusts for these purposes, which are more often and intensely pursued by people who have considerable wealth, especially given the costs associated with professionally designed trusts. An intricate, global, multi-faceted and multi-billion-dollar industry is operated by ‘[professional] trustees – now more often known as wealth managers – [who] create and oversee the structures that allow families to remain wealthy over multiple generations’ (Harrington Reference Harrington2017, p. 190). Students can be asked to envision individuals and families they might associate with the endeavours to which they imagined trusts being applied. This might evoke humour. An image of Scrooge McDuck and his grandnephews Huey, Dewey and Louie may be presented.
Students can be asked whether they think economic inequality is a moral problem in society, considering statistics about its magnitude and amplification in their jurisdiction (e.g. Joseph Rowntree Foundation 2026). Many may say yes. Some may say no. We can ask why students hold their view. If a student suggests that drastic economic inequality is morally acceptable, we can ask whether they mean that it is not immoral to be wealthy, or whether they believe nothing is wrong with a situation where some people in society are extremely poor while others are extremely rich. The discussion might reach a point where it can be agreed that economic inequality is at least widely considered a moral problem in our societies.
We can follow by asking whether students think trusts might play a role in that drastic inequality. Factually, trusts preserve and ensure ongoing capital accumulation (Gearey Reference Gearey, Piška and Gibson2024, p. 118). Does this contribute to an intensely uneven economic playing field? Anecdotes like the following can promote discussion. An Australian parliamentary candidate claimed that, as a renter herself, she understood the struggles with increasing rents but still opposed construction of new apartments. They are too small. This purportedly prevented her from having children. She neither revealed that she owned and received rental income from apartments in London and Canberra nor that she was one of eleven beneficiaries who gained from a $20 million discretionary family trust (Cann 2025). Her opponents learned of the trust through a court judgment which granted the trustee’s application to extend the vesting date, because this would serve the purpose of ‘deferring adverse taxation consequences … which is for the benefit of the beneficiaries’.Footnote 2 The candidate’s supporters and opponents expressed that she did no wrong by being a beneficiary. The broader question, though, is whether it is just that, while ordinary people struggle to afford housing, many who charge them for it have been facilitated by advantages provided by trusts law to do so through inherited (and more readily concealable, less readily taxable) wealth. Family wealth stories like the foregoing also provide context to help students understand the doctrinal nuances of discretionary trusts.
Do wealth maximisation efforts often entail the deployment of trusts to ‘subvert’ other aspects of law concerning taxation and debt (Bennett and Hofri-Winogradow Reference Bennett and Hofri-Winogradow2021)? Jurisdiction-specific examples can be given with a view to discussing their relationship with economic inequality and whether this relationship is changing to a considerable degree.
For now, let us focus on tax. Australia lacks inheritance taxes. Inter vivos trusts, however, are used to split income within families for it to be taxed at a lower threshold.Footnote 3 Australian statistics illustrate serious amounts of money that trusts have withheld from the public purse (see, e.g. Australian Taxation Office 2019).
The UK’s new Finance Act 2025 reduces the trust’s utility for tax minimisation.Footnote 4 To what extent? Is this good? These questions will demand attention from trusts teachers who can help their students by discussing them. Even in jurisdictions where trusts are less effective means for paying less tax than they once were, they may have intergenerationally contributed significantly to the presently drastically disparate distributions of wealth in our societies.
Consider Britain’s inheritance tax. It is inapplicable to estates under £325,000 and transfers to, inter alia, one’s spouse.Footnote 5 Settlors could avoid inheritance taxes on any greater amount left to one’s offspring through inter vivos transfers made seven years before one’s death.Footnote 6 Tapered relief is available if transfers are made within that period.Footnote 7 Problems with outright gifts (risk of squandering; minors’ ineligibility to own land) have been avoidable via inter vivos trusts. Students may be interested in how offshore tax havens and trusts interacted to enable avoidance of tax liabilities. We can explain that statutes in countries like England allow settlors ‘to choose a foreign law to govern what would otherwise be [a domestic] Trust’ (Hayton Reference Hayton2001, p. 96).Footnote 8 One can find examples which indicate that trusts allow ‘people to use and enjoy the trust assets without taking ownership of them’ (Knobel Reference Knobel2017, p. 31).
Not all such examples concern taxation. For example, as Graham Virgo observes, protective trusts have ‘proved to be especially important where a parent is concerned about a profligate child losing property on being declared bankrupt’ (Reference Virgo2023, p. 63). In this way, might trusts help wealthy families maintain advantages over those without comparable resources? To be sure, trusts are not the only legal instruments through which well-resourced individuals have steered themselves away from costly legal obligations. They have done so alongside other structures like corporations. The point is to invite consideration of the unequal social context in which trusts operate.
This enables us to pose the problem through paradox. If drastic economic inequality is widely considered a moral problem in society, perhaps in defiance of conscience, then how can trusts be allowed to perpetuate this situation? How can this be so when, as students will read, trusts law is predicated on a notion of conscience? We can introduce Equity’s ‘conscience’ which is recognised at the heart of the trust. Where an express trust is created, Lord Browne-Wilkinson wrote, ‘Equity operates on the [legal owner’s] conscience’, which ‘requires him to carry out the purposes for which the property was vested in him’.Footnote 9
Even the liberal legal thinker Ronald Dworkin considered the economic inequality in our societies ‘unconscionably’ great (Dworkin Reference Dworkin2011, p. 351). Empirical evidence indicates that wealth maximisation uses of trusts play a considerable role in this situation (see, e.g, Harrington Reference Harrington2017, p. 43). In discussing these points with students, we can pose questions like: Are the moral ideas underpinning the trust conceived by our legal systems in ways that produce immoral outcomes for society? Are different understandings of those moral concepts available? Might the law of trusts distort or circumscribe moral concepts in ways that privilege some and underprivilege others? Trusts doctrines can be introduced, contextualised and learned through the lens of that problem. From a practical pedagogical perspective, helping students to contemplate the limited scope of the morality of Equity’s trust is beneficial.
The trust is an Equitable supplement to common law concepts including those concerning property. Before moving to analyse trusts doctrine, we must appreciate property’s significance as the basis of economic inequality. As Cotterrell writes: ‘Behind the [trust], stands an even more fundamental [concept] of great and universally recognised ideological significance[:] property’ (Reference Cotterrell1987, p. 82). It may be apparent to some students that property empowers people, our legal system protects people’s property, and, in turn, the power embodied in it. We can ask them to consider whether ‘the concept of property makes it possible for the law to accommodate and guarantee these inequalities while maintaining the ideology of equality’ (ibid.). If law treats its individual subjects as equal, in an abstract sense in terms of rights to own and acquire property, then does it obscure the power they hold as property owners (ibid., pp. 82–83)? If those who own vast amounts of property are thus tremendously powerful, why do they need trusts to help them preserve and maximise this power through the previously noted endeavours? Must this concern the interpersonal notion of trust and the need to ensure that it is upheld?
We might ask: how might society be different if we did not have trusts or something similar? Would property rights be more likely to die along with their holder? Would intergenerational wealth be harder to perpetuate? Would it be more difficult for wealthy people to confide wealth in professionals (trustees and other fiduciaries) on the understanding it will be used to make more wealth for them? Would ordinary members of society have a greater chance of securing a larger slice of the pie? What would this mean for social class?
Cotterrell offers thoughts about the challenges in perpetuating property rights beyond one individual’s present ownership:
‘Power in society is often the attribute of collectivities or groups – families, organisations of many kinds, elites, classes, etc. [So] there may be some inherent limitations in the property-form as an embodiment of social power because of its requirement of a clearly identifiable thing-owner. It may sometimes be difficult to conceptualise particular kinds of collectivity as thing-owners and it may be even counter-productive to try. For example, social classes (however identified) are not known to law and ideologically it is most important that the notion of social class be rigidly and, if possible, totally excluded – [Law conceives] capitalist society [as essentially one] of equal citizens’ (ibid., p. 84).
Students may observe that trusts provide solutions to problems which would otherwise afflict the interests of people who are determined to secure huge amounts of intergenerational wealth. To understand trusts, we must encourage students to consider the problem trusts solved for owners of immense property.
Another paradox can be introduced. Not only wealthy people are beneficiaries. Three decades ago, Cotterrell observed the increasing importance of ‘trusts in contemporary life [e.g.,] in essential social welfare and employment contexts’ (Reference Cotterrell1993, p. 75). Ordinary workers’ pensions are pooled in large trust funds and managed by professionals. Charitable trusts provide social services including for the relief of poverty. Yet few would say that the availability of trusts for ordinary and poor people eliminates or satisfactorily counters the gross inequality which afflicts our societies. We should consider not only that the ordinary and poorer members of society have lesser amounts of wealth in trusts which ostensibly are managed for their benefit. They may also have less control over how these amounts are managed. The discussion, therefore, must turn to the way in which beneficiaries, or at least wealthier ones, are empowered vis-à-vis the trustee through trusts doctrine, and whether and how, perhaps, this is not quite so much the case for less wealthy beneficiaries.
4.2 Interpersonal trust: the reversal
Take Cotterrell’s analytical ‘starting point’ (Reference Cotterrell1993, p. 79) of the reversal of the interpersonal power relationship between trustee and beneficiary to open an inquiry into the problem through which students can make sense of trust doctrine. Equity’s particular notion of conscience generates another, subsidiary, moral notion of trust which governs the relationship between the trustee and the beneficiary.Footnote 10 Through Cotterrell’s work, we can encourage students to consider how legal recognition of the interpersonal moral relationship between parties to a trust may ultimately contribute to a broader moral problem of economic inequality in our societies.
We can talk through the creation of trusts to understand the moral notion of trusting at the heart of the trust which responded to the deficiency of common law’s understanding of individual freedom to own and transfer property. A person (the settlor) decides to give someone (the trustee) property, or to hold property themselves, on trust. They want the person, usually a third person but sometimes oneself, for whom the benefit of that property is held (the beneficiary) to be able to trust that the trustee will deal with the property in accordance with the terms of the trusts and in the beneficiary’s interests. In making such an arrangement, the settlor has made the trustee the legal owner of the trust property. That is how the trustee can have the legal right to keep and deal with the property, including selling trust property to bring funds into the account or investing or selling it to make a profit, for the beneficiary.
The settlor no longer owns the property and has (at least, formally speaking) exited the picture (unless they are also either the beneficiary or trustee). They intended that the beneficiary can trust the trustee to uphold the terms of the trust without compromising their loyalty. The common law problem was that once the trustee becomes the legal property owner, they are free to deal with it however they choose, unless governed by contract, which would only entitle the settlor to claim damages for breach. Property law, without supplement, would defeat the intention of the original property owner who created the property interest in the hands of the trustee under the understanding that it entailed an obligation to hold it in the beneficiary’s interests. The beneficiary would be at the mercy of the trustee whom they would merely hope they could trust (Worthington Reference Worthington2006, pp. 63–65).
We can ask students to imagine whether settlors and expectant property recipients would have been satisfied with such a situation and what moral arguments they would have made in favour of enforcement of the trust vested in the trustee. If the King vowed to rule according to good conscience and established a judicial office or Chancellor and institution of Chancery to administer it when the common law would produce an unjust result, what would you do upon finding that your trustee could not be trusted? Would you argue that he had an obligation of conscience to hold the property in your interests? Might you specify that this person’s defiance of conscience came in the form of misusing their common law right as a property owner? Would this be because they were trusted to look after the property for you, and, by taking the property for themselves, they are abusing the trust vested in them and exploiting your reliance? In the Earl of Oxford’s Case (1615), King James enunciated that the ‘office of the Chancellor is to correct Mens consciences for [inter alia] breach of trust’.Footnote 11 Imagine Scrooge McDuck left Uncle Donald to manage aspects of his estate to support the upbringing and futures of Huey, Duey and Lewey. Would it make moral sense, within the scope of the interpersonal relationship between the parties, to say that Uncle Donald is obliged in conscience to behave trustworthily or loyally as the legal owner? At this stage, our students should be able to appreciate that trusts law responds to a power relationship characterised by interpersonal trusting in which the relying beneficiary would be vulnerable to the trustee who has undertaken a duty of loyalty.
Cotterrell’s words encourage students to consider how the courts’ professed moral concern with such relationships gives rise to the fiduciary obligations of the trustee. This, he argues, ultimately brings about a reversal of the power dynamics between the parties to the trust. Cotterrell wrote:
‘We might begin to develop a framework for understanding the legal concept of trust in its moral and social context by recognising that trusting as a social or moral relationship raises acute issues of power and dependence. To trust someone is to take a relatively open-ended risk of relying on him or her. Trusting involves relying on that person’s goodwill in a range of circumstances that usually cannot be comprehensively defined in advance. […] The essence of interpersonal trust seems to be not just a belief that defined, agreed benefits (as in a contract) will be supplied. It involves also a belief that the person trusted will exercise discretion, acting in unforeseen circumstances or in relation to new situations, in a manner that protects the interests of the person who trusts. Reliance on another’s goodwill makes the person who trusts vulnerable. … [T]he person trusted holds power over the person who trusts’ (Reference Cotterrell1993, pp. 77–78).
Some would deny that aspects of fiduciary law are based on morality, but serve to combat specific problems such as ‘temptation’.Footnote 12 We should ask students, however, whether such concerns ultimately derive from a moral justification such as the obligation arising from an undertaking to exercise one’s power trustworthily for the reliant beneficiary. If interpersonal morality of trusting informs the trust, we can interrogate it further to appreciate its implications, and, equally importantly, its limitations, which, in turn, enhance understanding of doctrine.
Cotterrell’s words are comparable with those of judges explaining the fiduciary role of the trustee. Lord Millett wrote:
‘A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary.’Footnote 13
One might think that the underpinning concept of fiduciary law is ‘inherent in the nature of the relationship’ in which ‘a position of disadvantage or vulnerability causes [A] to place reliance upon [B] and requires the protection of equity acting upon the conscience of that other’.Footnote 14 Current authority, perhaps more consistently with Cotterrell, indicates that the causal relationship is the other way around. More recently, courts have expressed that vulnerability is not part of the ‘test’ for establishing fact-based fiduciaries but typically arises from the fiduciary’s undertaking to put their self-interest aside to act in the principal’s best interests as ‘the latter trusts the fiduciary to do so’.Footnote 15 While ‘vulnerability is not a touchstone of a fiduciary relationship’, ‘“[it] is relevant to the extent that [it suggests] a responsibility on the part of the putative fiduciary to act in the interests of the vulnerable party to the exclusion of the interests of the putative fiduciary”’.Footnote 16 Although trustees are status-based fiduciaries, the undertaking inherent in accepting trusteeship upon which the beneficiary relies, in turn, drives Equity’s conscience to treat the beneficiary as warranting special protection.
The idea of Equitable conscience, and its branch of loyalty which informs the trust, then, can be conceptualised and questioned. Students can readily understand how defenceless a beneficiary would be without the protection of trusts law. We can, then, progress to discussing the reversal of the power relationship between trustee and beneficiary through the legal doctrines which govern trusts.
The point is to encourage students to think about what that reversal, in other words, means for the power of the beneficiary. We can talk through the creation of express trusts and what happens as a result. A trust will be created once the settlor has made it certain that they intended to create a trust,Footnote 17 what property is to form the subject matter of it and who are to be the objects of the trust, if the latter can be deemed a beneficiary in whose interests it can be enforced.Footnote 18 If this is done, without problems in terms of constitution, formalities or legalities, the intended beneficiary is empowered with a means of enforcing obligations undertaken by the legal owner (and beyond the literal ‘terms’ of the trust). As a trustee, that legal owner now holds a special status as a fiduciary.
This stage is an ideal time to discuss what Equity’s fiduciary relationships – which include but are not limited to trusts – mean and their implications for parties involved. The fiduciary notion of loyalty which springs from Equity’s conscience can be discussed, with reference to key cases, through the seriousness of its implications for trustees and other fiduciaries.Footnote 19 We can discuss the no-profit and no-conflict rules, and the strictness with which courts are determined to apply them to fiduciaries.Footnote 20 As the United Kingdom Supreme Court recently stated: ‘The no profit rule is … primarily intended and therefore designed to act as a support for the conscientious discharge of the duty of single-minded loyalty undertaken by a [fiduciary] to his … principal’.Footnote 21 We want students to think about how, as one reads through Cotterrell, Equity takes the interpersonal moral obligation of trust in the hands of the trustee and translates this into a form of property in the hands of the beneficiary. If the archetypal beneficiaries, the young McDucks, can appeal to Equity to ensure that Donald not only upholds the terms of the trust, but does so according to a duty of loyalty, in his management of the mansion, are they necessarily still disempowered in relation to him?
Or do they now hold power over Uncle Donald in a way which gives them a special kind of power as Equitable property owners? Cotterrell is helpful here:
‘The idea of [the trustee’s fiduciary obligation] harnesses to legal doctrine a moral conception of great social significance and induces us to see the trust beneficiary not as the possessor of property-power but as a person meriting protection; a person to whom moral as well as legal obligation are owed. The trust-form, concentrating and guaranteeing property-power, not only fails to impose moral obligations on the powerful, but actually encourages us to think of moral obligations owed to them because of their beneficial entitlements’ (Reference Cotterrell1987, p. 88).
Moreover:
‘This apparent power of trustees and passivity of beneficiaries is, however, misleading. It is the beneficiaries – often collectivities – unrecognised directly as legal owners who actually have access to the property-power embodied in the trust. This is ultimately admitted in, for example, the very strict rules governing trustees’ duty with regard to investment, profit-taking by trustees, and conflicts of duties and interest, and in the rule in Saunders v Vautier, which allows the trust device to be set aside if the beneficiaries so wish where all of them are identifiable persons having full legal capacity and hence easily recognisable as property owners within the orthodox commonsense conception. Yet the very fluidity of beneficial entitlements which the trust makes possible hides from view even more effectively than the property concept in its simple form the actual structure of power which private law guarantees and perfects’ (ibid., p. 86).
It should be asked: in what ways can a beneficiary’s power embedded in their trust property make them more powerful than a legal property right would make them?
This should provide for stimulating discussion. Having already discussed tax minimisation, inheritance and investment, we can now go deeper and further. Can the fiduciary obligation of the trustee ensure that property which might otherwise easily be dissipated or mismanaged by a profligate young Huey is still there for when he is older and wiser? Can it ensure that his wealth is not eroded by inflation but increased by stipulated investments? Could it even help him avoid paying his creditors? The context of wealthy family trusts might be an effective way to illustrate the key ideas which inform trusts doctrine and how they protect beneficiaries.
In contrast, we can invite discussion about whether the protection afforded is as practically beneficial for ordinary and poorer beneficiaries. Those people will not have as much property power to begin with in their trusts. Is the bricklayer or nurse, moreover, especially empowered by the terms of their pension trusts? These trusts are created through standard contracts, which are rarely drafted by someone as invested in their interests as a parent or grandparent. Such trusts are administered by professionals who are not as personally invested in the workers’ interests as a benevolent relative (Cotterrell Reference Cotterrell1993, p. 80).
As Cotterrell observed, ‘the character’, of such ‘big trusts’, ‘is in certain respects exceptional or controversial, especially where, as in the case of some pension trusts, a contractual nexus defines the position of beneficiaries’ (ibid., p. 84). He adds:
‘The use of contract principles further tends to reduce emphasis on fiduciary bonds in trust analysis, and blurs the nature of trust relationships. But the conception of trusts as capital management structures may well encourage emphasis on a diversity of contractual rights arranged around capital funds rather than a traditional emphasis on specific equitable proprietary interests demanding a range of diffuse fiduciary protections’ (ibid., pp. 92–93).
Cotterrell makes this point in the context of ‘moral distancing’ between parties that characterises ‘big trusts’ generally, including managed investment schemes which are often effective means of wealth maximisation for those who have significant wealth to manage (ibid., pp. 79–80). The ‘moral distancing’ arises as the size of trusts means that beneficiaries are reliant on the skill and expertise of professional trustees with whom they have no immediate relationship to maximise returns on investments (ibid., p. 80). Indeed, we should encourage students to consider how legislation has emerged to accommodate the need for regulation of trustees based on such concerns (see, e.g., Clements Reference Clements2004).Footnote 22 At this point, we can introduce students to the interplay between contract and Equity in what Michael Bryan notes ‘has been inelegantly labelled the “contractualisation” of trusts law’ (Reference Bryan, Piška and Gibson2024, p. 58). The expanding moral distance is largely explicable through ‘the proliferation of contractualised trusts which do not have at their core the notion of a trustee subordinating personal interests to the interests of the beneficiary’ (ibid.). Though trusts are doctrinally creatures of Equity, they can be created by contracts which shape the rights and responsibilities embodied in a given trust. The duties of a trustee can be whittled away so far as to leave nothing but the ‘irreducible core’ of ‘perform[ance] of the trust honestly and in good faith for the benefit of the beneficiaries’,Footnote 23 and even the nature of a fiduciary duty itself is informed by the contract that created the relationship.Footnote 24 Less powerful, ordinary and poor people are less likely to have their interests at the forefront of the drafters’ minds. Building upon Cotterrell’s thought about moral distancing, might the implications of this widened gulf be more profound for less wealthy beneficiaries who practically have little power over their trustees?
Students can begin to imagine how the inequality surrounding them might have something to do with the deployment of moral ideas, conceived in particular ways, in characterising beneficiaries as disempowered and consequently making some of them exceedingly powerful. They may also consider how such empowerment is not particularly real for many beneficiaries. If students recognise a reversal in the interpersonal power relationship between trustee and beneficiary, in some contexts but not others, they may form thoughts of their own about how this shapes the distribution of economic resources in the society in which they live. Then we may focus on Cotterrell’s observation about trusting in the law of trusts itself following from the reversal of which he writes.
4.3 Trusting in law
The third step in classroom discussions is to encourage consideration of the link between the empowerment of the beneficiary and the empowerment of wealthy classes of beneficiaries, as well as how this link might not be present in the case of less wealthy classes of beneficiaries. That link, appreciable through the consciousness that Cotterrell advanced, is the ability of beneficiaries, via trusts doctrine, to rely on law and courts through which it is administered. Are the kinds of interpersonal trusting and the ensuing economic empowerment enabled by the ability to trust in, and the empowerment, conferred by institutions? Does the trustworthiness of the law toward some, and less meaningfully so for others, entrench economic inequality?
We can encourage students to connect Equity’s notion of trust to a prompt from Cotterrell’s explanation of how law itself, by virtue of its compulsion of trustees, positions itself as an object of trust:
‘To the extent that law controls trustees, the risk of relying on them is reduced and the moral relationship of trust is displaced from the trustee and attached to the law itself. Thus, law’s significance is to reduce the risk of interpersonal trust. Instead of having to put one’s moral trust purely in the trustee, one can have confidence in law which guarantees the trustee’s proper behaviour’ (Reference Cotterrell1993, p. 79).
If Equity embodies a notion of conscience, through which it holds a trustee to obligations which their own conscience should recognise in relation to their beneficiary, does it, in turn, act in accordance with its own official conscience in its governance of the private property rights of legal owners? If Equity could not do so, how would the society of private law be viewed by people who would otherwise wish to be settlors or beneficiaries of large volumes of property? Would Scrooge McDuck view the law as trustworthy if he could not rely on its assurance that his nephews could trust it to hold Uncle Donald accountable? If the common law system told the McDucks that they could only hope for Donald’s trustworthiness, would Scrooge and his country club co-members not lobby parliament to legislate what we know as trusts into law (Kroncke 2026)? These are questions we can ask to help students to think about whether, and if so, how law takes an interpersonal notion of trust and, in so doing, commands trust from those who heavily rely on the law of trusts to protect and perpetuate their wealth.
We can encourage students to contemplate Cotterrell’s general observation about impersonalisation:
‘the moralistic conception of the trust stresses the need to protect a close personal bond between truster and trusted. It emphasises the fiduciary character of the trust relationship and implies the importance of policing this strictly. But the very means by which law has attempted to do this, reversing the usual power-dependence relations in interpersonal trust, leads away from the moralistic emphasis and towards the idea of the trust not as a personal relationship but as a property-receptacle. Law’s protection of trust thus seems to set a path towards the development of impersonal system characteristics in trusts. Ultimately it appears to lead towards the capital management conception of the trust. And the consequence of this seems to be that elements of technical competence assume ever greater significance—reflecting the need for efficient management of the trust as a system-while fiduciary aspects of the trust relationship become vaguer, more diffuse, and significantly harder to protect’ (Reference Cotterrell1993, p. 91).
To what extent is this ‘impersonalisation’ universal in the world of trusts? If Harrington’s research is considered, we can see that the professional trustees for big family trusts are often trusted in a literal sense (Reference Harrington2012, pp. 834–35). In these trusts, though, does impersonalisation occur truly in the sense that their trust in persons (trustees) is really ensured by their trust in legal systems which govern them? Perhaps impersonalisation empowers some beneficiaries and disempowers others? If the law is trusted by those who benefit from trusts in terms of their holding of property and power, then what does that mean for the relationship between trusts and the rest of us?
Ultimately, however, working people whose pensions are held in ‘big trusts’ have little choice but to trust in law or hope they can. Cotterrell reasons:
‘[A] likely effect of insufficient emphasis on moral foundations of trust relationships in big trusts and, more generally, in the systems which [pervade in] social, economic and political life is that, where possible, people vote with their feet … They avoid reliance wherever possible on structures or systems that they no longer trust. In relation to different kinds of systems this can take a variety of forms: the withdrawing of funds, the cashing in of investments, or more broadly, an opting out of involvement and concern, or the use of alternative (sometimes illegitimate) methods of protecting one’s interests, acting perhaps on the basis of distrust rather than trust. Where avoidance is impossible the likelihood is simply that systems will slow down; the pace of economic, financial life, for example, slows as individuals calculate more carefully and more reluctantly whether and when to involve themselves in relationships of reliance which appear to them increasingly insecure’ (Reference Cotterrell1993, pp. 94–95).
We can evidence the confidence wealthy families and individuals have in legal protection of their interests through trusts. Yet the difficulty for working people in ‘vot[ing] with their feet’ manifests in the instances of pension trusts (Bryan Reference Bryan, Piška and Gibson2024, p. 65). Poor people cannot always reject support from charities. Many must ‘trust’, or hope, that existing law will provide some significant protection. Our students have plenty of fuel for thought about who can meaningfully trust in law and to what extent.
4.4 Trusts and class relations
If students find that trusts law empowers well-endowed beneficiaries by its trustworthiness in relation to their wealth, then by extension, the question arises as to whether the trust upholds or entrenches class power.
The point is not to give students answers, but to engage them in active inquiry. Engagement can be more readily stimulated when students conceive their class interests as at play through trusts law.
If trusts empirically provide powerful wealth preservation and maximisation tools for the affluent, who can trust their trustees and law to perpetuate their economic power, then what implications follow for middle- and lower-income groups? Are such groups kept ‘in place’ through the wealthier classes’ usage of trusts? Given that members of the ordinary and poorer classes are beneficiaries of trusts too, such as pension and charitable trusts, does their lesser empowerment through these trusts indicate that trusts play a role in maintaining class-based divisions in our societies? If the wealthy family trust beneficiary can meaningfully trust in trusts law, but the same cannot fairly be said about the ordinary working person whose pension trust is governed by contractualised standard terms in which they had no substantial input, then does this indicate that trusts play an important role in entrenching economic inequality? If the ultra-wealthy can establish charitable trusts to escape taxation of enterprises they undertake in providing elite education for their progeny who ultimately go on to hold decision-making power over the ordinary classes, does this further indicate a role trusts play in entrenchment and intensification of inequality in our societies (Jones Reference Jones, Piška and Gibson2024)? Do trusts for ‘relief of poverty’ really aggrandise the wealthy classes, who use them to minimise their tax burden while poorer classes continually work and pay more for less remuneration (ibid.)? Although the aim of this article’s approach is not to promote the view that ‘Equity should be studied as a mechanism or knot that holds together the power and fictions of capitalism’ (Gearey Reference Gearey, Piška and Gibson2024, p. 118), students who wish to pursue this train of thought should be encouraged. The point is that the controversy of the gap between the haves and the have-nots in contemporary societies, and the role of trusts in sustaining or even widening it, provides a basis from which to engage students in thought about the subject which is conducive to improving their understanding of the law itself.
Furthering Cotterrell’s thought about trusting in systems, we might extend the inquiry about the law of trusts vis-a-vis inequality, beyond the concern about trusting in a legal system, toward the broader and economically stratified social order in which law operates. If, for example, pensions are held in trusts managed by professionals in the finance sector, and the ordinary beneficiary of such trusts cannot meaningfully invest their trust in such circumstances, then might their practically compelled entrustment of trusts empower powerful interests which are against their own? The finance sector is incredibly powerful yet increasingly lacking in social trust (McCarthy Reference McCarthy2024, p. 6). This situation is exacerbated such that trust in government, in a political sense, declines substantially: ‘as the state becomes increasingly dysfunctional, it risks losing the “mass loyalty” of the population and undermining its own electoral sources of governing legitimacy’ (ibid., p. 38). If poorer and ordinary people are less able to trust in trustees and law to stem the tide of inequality, while trusts simultaneously serve as means of tremendous wealth preservation and maximisation for the wealthiest, then to what extent are trusts a source of mistrust in a larger social and economic system in which we must live and participate? These may sound like loaded questions, which can always be subject to criticism, but they might follow from views one could plausibly form following previous stages of our discussions about trusts.
Back to the moral foundations of trusts. If moral critique can be levelled at the role of trusts in relation to economic inequality in our societies, might this tell us and students something about trusts which is worth understanding? Might even those who are uninterested in improving law for collective interests find the discussion helpful for contemplating how doctrine operates? Might Equity’s conscience, its notion of fiduciary loyalty and more specific points of legal doctrine, be better understood if we appreciate the moral thought at play and its moral limitations? Trusts will be more understandable when students can conceive them within the broader, and intensely unequal, social picture in which they live.
5 Conclusion
This article proposed a remedy for law students’ common lack of enthusiasm for trusts. It suggested that the impact of economic inequality upon many students would extend the distance between their interest and the subject. This spurs us to make trusts engaging for the sake of their futures. Cotterrell’s critical and sociological approach to understanding the law was outlined. His extension of it into trusts was taken as a basis for engaging students at the introductory stage of the module. The proposed method would pose the problem of a potential role of trusts in the economic inequality within the societies in which students live. Its implementation would begin with a discussion of this problem, which encourages students to voice and cultivate their own consciousness of trusts. The method would move on to promoting thought about how trusts doctrine is built upon a moral interpersonal notion of trusting which Cotterrell argues undertakes a reversal of the power relationship between the trustee and beneficiary. Students would then be asked to consider how trusts law, by upholding obligations of trustees, positions itself as an object of the beneficiaries’ trust. The method would subsequently encourage students to consider whether all beneficiaries are meaningfully empowered vis-à-vis their trustees. In turn, the method would encourage them to consider whether any empowerment of some social groups through trusts, in contrast to others, fuels economic inequality in the societies in which they live. Teachers can implement this method, or aspects of it, in ways they deem appropriate. Consequently, students will find trusts more engaging and potentially use their consciousness to advance their careers as well as, hopefully, to implement positive legal developments.
Acknowledgements
I thank Dr Allison Lindner, Dr Cyprian Kambili, Dr Jedidiah Kroncke, Dr Eric Loefflad and Professor Wayne Morrison for their feedback on my presentation of this paper at the colloquium. I acknowledge Dr Lindner and Dr Loefflad especially for their comments on earlier drafts and the reviewers for their suggestions. I am grateful to Professor Roger Cotterrell for his contribution to our consciousness about trusts and trusting, which inspired this article, and for his generous guidance since I joined Queen Mary. Professor Cotterrell’s writings were required reading in the Equity & Trusts module on which I taught at Kent Law School. I thank Mr Nick Piška and Dr Hayley Gibson for their convenorships of that module, which gave me the opportunity to develop the approach proposed in this article. Finally, I am grateful to Professor Michael Bryan for his encouragement and helpful insights on private law.
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