Revisiting sham trusts: Common intention, estoppel and illegality

• Main Author: SEE, Alvin W. L.
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2018
• Subjects: Sham Trusts; Illegality; Commercial Law; Estates and Trusts
• Online Access: https://ink.library.smu.edu.sg/sol_research/2589; https://ink.library.smu.edu.sg/context/sol_research/article/4547/viewcontent/Revisiting_Sham_Trusts.pdf
• Institution: Singapore Management University

This article examines the prevailing view that, to find a sham trust, the settlor’s shamming intention must be shared by the trustee. This common intention requirement, it is argued, overprotects the trustee and the beneficiary, and suffers from inconsistent application to conceptually identical cases. Moreover, where the sham is concocted for the perpetuation of an illegal purpose, the requirement may contradict the operation of the illegality doctrine. This article proposes that the two doctrines ought to align and that any prejudice to an innocent trustee or beneficiary can be addressed with more specific solutions such as a change of position defence or an analogous estoppel defence.