Law & Critique: Property and the Interests of Things

We take it for granted that the very wealthy use trusts to leave their wealth to their children. Have they not always done so? After all, the aristocracy has used one or another variant of the trust form for centuries to pass on rolling hills, country piles and precious heirlooms. So what has changed? A number of cases[i] have recently come before the courts that deal with one specific issue in the law that concerns what one may call donative or family trusts. In these cases, trustees and settlors that wish to vary an existing trust (usually for tax reasons) ask the court to hear their application in private. So what, one may think. After all, it is not surprising that the very wealthy wish to keep their financial affairs out of the media. What issurprising, however, is the justification that these settlors provide for their need for privacy: Their main aim is not to keep their affairs a secret from the public, but to keep them a secret from their children, the beneficiaries of the trust. As the reasoning goes, if the variation hearings are reported in the media, word will ultimately get back to the children. Someone may whisper to them in the playground ‘do you know how wealthy you really are?’, destroying in one fell swoop any initiative these children may ever have to achieve anything.

In bringing these cases, the settlors thus reference a chain of cause and effect that has been described many times: Excessive wealth that has not been earned can crush autonomy, achievement and any prospect of real happiness, particularly in young people. As one commentator puts it: ‘Wealth is a problem. . . . Lives can be ruined by poverty, but lives can equally be ruined by excess wealth.’[ii]This risk should lead very wealthy parents to give most of their wealth away. And some indeed do. As the entrepreneur Kevin O’Leary said in an interview with CNBC: ‘“I told [my kids] when they finished college, I was going to give them this: nothing . . . You have to go make it on your own, and I think that is a very important lesson.”’[iii] Others, however, resort to the trust form to pass on their wealth to their children even though they know of its adverse consequences. These parents hope to have it both ways; to raise their children without the trappings of wealth so that they develop into autonomous, productive persons – the precise kinds of person that do not need vast amounts of inherited wealth – while at the same time making them excessively wealthy.

An apparent incongruence like this should raise questions. What is really going on in these arrangements, and what role does the trust play in them? If it does not make sense for these settlors to wish their children to be at once wealthy and not wealthy, how doesone make sense of their wishes?

One way to recover sense is a switch in perspective. Trusts are generally thought to be a species of gift, albeit with certain restrictions, such as that beneficiaries have access to the property only when they reach a certain age or milestone. This could be termed the ‘access minus’ view of the trust. But one may also look at trusts as mainly being comprised of restrictions, with some benefits nevertheless accruing to beneficiaries at some point in time. This could be termed the ‘restriction plus’ view of the trust. ‘Access minus’ sees the trust as a positive arrangement of enabling access to property, while ‘restriction plus’ sees it as a negative arrangement of withholding access to property. By emphasising all the features of the trust that contradict gift giving and the immediate access to property it affords, the ‘restriction plus’ view of the trust has as its advantage that it does not presuppose a primary intention on the part of settlors to benefit the beneficiaries. Freed from the conceptual shackles of the gift, which is concerned with property passing between persons, one is able turn to the trust property itselfand ask: Could it be the case that these settlors are primarily concerned about the maintenance and increase of the property they have accumulated rather than about the welfare of the beneficiaries? After all, it is not hard to imagine that someone who worked hard to accumulate wealth would hate to see it wasted through the ineptitude or the appetites for consumption of the next generation.

In a way, none of this is new. We know that the country piles passed on through generations could often not be sold or mortgaged by the heir and came with a number of duties to ensure their upkeep, duties which would require the heir to be productive in generating wealth independently in order to meet the ever-increasing demands of the crumbling stonework. What’s more, arrangements were such as to force the heir to settle the property with similar conditions on his heirs in turn, preventing the property’s entry into the open market and thus its eventual ‘consumption’ through break-up and sale. But by categorising these arrangements as gifts, we have so far focussed solely on the persons involved and the benefits they receive – benefits of status as well as some exclusive access to resources – and neglected the fact that the trust’s main characteristic is that it is notan outright gift. Rather than seeing this withholding of access to property as a thinly veiled form of absolute ownership aimed at keeping tax authorities and other third party off the property, we should take it seriously: Trusts withhold access to property from beneficiaries.

Looked at it from this perspective, the family trust reveals itself as instrument that subverts the notion of ownership in which people are prioritised over things. Ownership is commonly thought to entail a relation that either enables total control by the person over the thing (envisage the apple I am about to eat, thus bringing its existence to an end) or limits this control for reasons to do with other people (the car I may only drive according to the prevailing speed limit, the forest I may not cut down for the good of humanity), but never limits control for reasons to do with the property itself. After all, it is my autonomy that is to be furthered by my ownership of the apple, car or forest, which has no say in the matter. The trust, on the other hand, allows things to be placed in what appears to be a relation of ownership, but which in reality is a relation in which the purported owner’s control is restricted and directed towards the interests of the property as determined by the settlor. Of course, there are rewards, why otherwise would beneficiaries agree to serve the interests of things? But to see the distribution of benefits as the primary purpose of the trust would be to neglect the fact that we have a much better way of conveying benefits: the outright gift.

As to the status of the ‘owners,’ it matters little who they are. One beneficiary dies, the next one succeeds automatically. One trustee resigns, another is recruited. While my will alone determines what happens to the apple before me (and who I am is therefore vital for the apple’s continued existence), trust beneficiaries are not able to impose their will on the trust property and thereby change either its legal status or its physical existence. They can take the trust property and handle it in accordance with the rules of the trust instrument, reaping their just rewards for services rendered. Or they can leave it. But they do not have the kind of control that we associate with property ownership, and they cannot use it to further their own autonomy.

However, the trust does more than just to reverse the relation of control between persons and things. It also reverses the relation of production. It allows the property to produce owners that are suitable for the task of its maintenance. Trusts effect a break in the access of the person-owner to the thing-owned. This turns the person to the property, focussing his or her attention on it rather than on themselves. Trusts thus do what Heidegger describes in his account of the relation between persons and things: The primordial way in which people relate to things is to use them as equipment for their own purposes. It is only when the hammer in the tool shed breaks that a person becomes aware that the hammer is not merely a useful part in a wider personal project. Heidegger writes about the characteristics of ‘conspicuousness,’ ‘obtrusiveness,’ and ‘obstinacy’ that things acquire when they are broken, missing or stand in one’s way.[iv]

With family trusts, the break in access can come in a variety of forms. It can be a restriction of access to income or a stipulation as to how the property is to be used. Each of these rules disables the unthinking use of the property for the beneficiary’s own purposes. Perhaps most effectively, the break can come in the form of the withholding of information, as in the recent court cases. If property is to ‘survive’ its passing into the hands of beneficiaries and ‘thrive’ in the future, it must go to suitable servants who will respect its needs and independent existence – not only throughout the lifetime of the trust, when rules are in place that restrict the beneficiaries’ access to the property, but even after the trust has come to an end (every trust must end at some point). So it is vital that children-beneficiaires should grow into autonomous, productive adults who essentially have no need for the property they will come to own outright and will be strong enough to resist the temptation of its consumption. They should also be conditioned in such a way as to settle the property again on their children, once it is time. Not knowing about their own wealth at an early age ensures the production of this kind of person. Unaware that they will come into property that will have rendered pointless any effort at achievement, these children grow up into responsible property owners – responsible not to society or themselves, but to the trust property they will come to serve.

The cases in which settlors seek to assert a right to privacy now show themselves in a different light. If the settlors had really been concerned about their children’s autonomy, they would have done the logical thing: Give most of the excess away, and pass on only so much wealth as to be truly useful. The fact that they did not do so has nothing to do with their inability to act rationally. On the contrary, these settlors use the trust form in a rational way to ensure that their property will be maintained and increased over time. Amongst property arrangements, only the trust allows things to pass into a state where they are safe both from consumption by absolute owners and the passivity of the state of nature, which would render them subject to the vagrancies of fate. If things are to have interests enforceable through the courts, they need human agents that act to defend them from both these dangers.

That trusts law elevates the interests of things over those of the persons owning them makes it be truly a law of things. What does this mean for the trust as a property arrangement, so long thought to be governed by a law of persons? Perhaps it is time to review our one-sided understanding of property in which the only reason for an institution of property is to provide people with control over and access to things. Perhaps a better way of looking at the person-thing relation would be to ask who, in any particular case, controls and produces whom.

 

The ideas in this blog post are more fully explored in ‘Property and the Interests of Things: The Case of the Donative Trust’ in the latest issue of Law and Critique. The article can be viewed here. A different approach can also be found in ‘The Reproduction of Property through the Production of Personhood: The Family Trust and the Power of Things’ Counterpress’s forthcoming Critical Trusts Law: Reading Roger Cotterrell. (Piska, Nick & Gibson, Haley Oxford: Counterpress).

 

[i]See, for example, V v T, A [2014] EWHC 3432 (Ch), MN v OP[2017] 3 WLUK 80 and MN v OP[2019] EWCA Civ 679.

[ii]Shindler, Geoffrey. 2014. Wealth and Safety. Trusts and Estates Law & Tax Journal 162 (Dec): 2-3, 3.

[iii]CNBC Make It article, accessed 13 February 2019, https://www.cnbc.com/2018/07/06/why-kevin-oleary-makes-his-kids-fly-coach.html.

[iv]Heidegger, Martin. 1962. Being and Time. Trans. J. Macquarrie and E. Robinson. Oxford: Blackwell Publishing, pp. 95 [67] ff.

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