A Proposal for Flexibility in Private and Public Express Trust Enforcement

The Uniform Trustee Act provides for the enforcement of certain non-charitable purpose trusts. This paper draws on that concept but extends it by recommending an expansion of the range of potential enforcement methods for all types of express trusts whether they are for non-charitable purposes, charitable purposes or for persons. In particular, it recommends that, for all types of express trusts, settlors be allowed to indicate possible enforcers. It also recommends that courts be allowed, unless the settlor indicates otherwise, to grant standing to persons to enforce express trusts whether for persons, non-charitable purposes or charitable purposes. It further recommends allowing for Crown enforcement of all types of express trusts (not just charitable purpose trusts) in statutorily specified situations and it recommends extending the availability of cyprès and administrative scheme orders to statutorily-identified non-charitable purpose trusts. The paper also argues that with Crown enforcement of all types of express trusts in statutorily specified situations, it is no longer necessary to retain several of the distinct features of charitable purpose trusts, such as exclusivity, public benefit and the invalidity of political purpose trusts. * Mark Gillen (B. Com, MBA, LL.B., LL.M.) is a professor of law at the Faculty ofPeer reviewe