Property Law Old and New: The Beneficial Interest Under a Trust

125 Abstract Understanding the nature of the rights held by the beneficiary of a trust has been far from straightforward. The prevailing orthodox position in English law is that the beneficiary has an equitable proprietary right in rem with title to the trust property conceptually split between the trustee’s legal title and the beneficiary’s equitable title. It is this conceptual duality between legal and equitable title to the trust property that has been most objectionable to lawyers of the civilian tradition. However, the position of the beneficiary in English law is in fact much more nuanced and contested. The debate has been reinvigorated in recent years by scholars arguing that the beneficiary’s right is not proprietary, he simply has a right against the trustee’s right to the trust property. Responses to this theory reveal that we remain at somewhat of an impasse. Building on recent work by David Foster, this article seeks to move the modern debate on by considering the nature of the beneficiary’s interest in its proper historical context. By placing the debate on the nature of the English trust on firmer historical foundations, the English trust can be seen to be a deeply practical device with a dual contractual and proprietary nature, which in turn better informs common lawyers, civilians and comparativists on the nature of trusts and trust-like devices.