Kelvin Low
in Oxford Handbook of Comparative Trust Laws (edited by Mark Bennett, Lusina Ho, Adam Hofri-Winogradow, and Richard Nolan, Oxford University Press)
Published online: December 2025
Abstract: The importance of enforcement to a trust cannot be overemphasized. Yet, despite its importance, the subject of enforcement is understudied, especially in a holistic manner. One of the impediments to enforcement lies in the fact that beneficiaries of trusts are often strangers to their creation. As such, this creates a natural informational obstacle to enforcement. This obstacle is exacerbated by modern trust drafting in the form of wide discretions and the widespread use of exculpatory clauses in trusts. In the absence of clear rights to information, and in the face of a battery of exculpatory clauses, can a beneficiary really enforce a trust? Another puzzle to enforcement is the effect of non-beneficiary enforcers such as settlors and protectors on the nature of the trust. Do such non-beneficiary enforcers dilute the interests of beneficiaries to the point that a trust is no longer a trust? Does this depend on a jurisdiction’s conception of the nature of a trust as either proprietary or contractual? The ability of other non-beneficiary enforcers—nominated enforcers—and other proposed solutions to cure the enforceability problem of private purpose trusts across jurisdictions is also critically examined.
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