While it is commonly believed that the law of trusts dates back to the Middle Ages, the concept is far older and can be found in a number of cultures. Yet it remains true that the birth of trusts, as they are understood in the English speaking world, came about when a crusader would leave England for many years only to return and be told that he no longer held any legal right to his castle.
At the time it was an issue solved only by the divine right of the King delegated to his Lord Chancellor, which ultimately developed into the law of equity. As we know, equity invokes the principles of fairness, impartiality and even-handedness. Yet today technology brings us face to face with much knottier issues than those faced by early protagonists resorting to equity.
The issues which face us are both manifold and largely unasked. If a crusader who was absent for over twenty years returned and equity demanded his castle (held in trust) be returned to him, then how should the law deal with a situation where the IVF progeny of an individual is born more than twenty years after his parent died? If a child can be born decades after the death of his biological parent, then how is a trustee or a protector meant to know when it is safe to distribute assets where the trust provides that trust property is held for an individual for his lifetime and is then to be divided among all of that individual's grandchildren where there are frozen embryos?
Can we safely presume at what age women can no longer have babies? What about the possibility of pregnancy well beyond the menopause, as now happens, which affects a class of beneficiaries?
Yet the plot thickens even further in this always changing terrain. Mitochondrial replacement therapy (MRT) involves transplanting the nuclear DNA from the egg of an woman affected by a genetic disorder to an enucleated egg from a healthy donor. How will MRT impact on the law of trusts?
The usual definition of 'mother' is both (a) to bring up a child with care and affection; and (b) to give birth. Mother is also defined as a woman in relation to her child or children. Putting aside for a moment the sociological issues and considering only the biological, the issue is still vastly complicated. Under MRT the child would have, biologically, two mothers. If two women who use MRT are in a relationship which breaks down by the time of the birth and the recipient refuses the donor be registered as a parent, as the baby has her mitochondrial DNA and would not otherwise have been born, should the donor be denied motherhood? A trust instrument recently seen provides that "issue whose mother is [a named individual] shall themselves become beneficiaries upon birth": does 'mother' refer only to children to whom she gives birth? Probably, but it could be argued otherwise if the amount at stake is high.
Chimerism, where a person has two genetically distinct types of cells, was once thought to be rare, but is now being found more regularly through genome sequencing. One case describes how an epithelial swab discounted a man in a paternity test when in fact he was the father but also a chimera. This is an issue with which those administering trusts may have to deal.
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