Philosophy and the Law | Professor Irit Samet

The Posthumous Trust: From Dead Hand to Mortality Management - Professor Irit Samet

Ownership ceases with death. Like all powers – to vote, enter a  contract or marry, the power to exert private control over property dies with the owner. This truism, however, did never stopped owners from trying to influence (or dictate) the afterlife of their property. In allowing trusts to operate after the final departure of the settlor, equity provides them with a most powerful tool for satisfying such hopes. The way in which the trustee must follow the deceased settlor’s wishes triggers a unique and serious ‘dead hand’ problem since the equitable title bestowed on beneficiaries is severely restricted by the trustee’s management powers as these are designed by the (now dead) settlor. From the beneficiaries’ perspective, the posthumous trust can be seen as an exercise in overcontrol or an expression of a pathological refusal to reconcile to the fact of one’s mortality. I wish to offer two ways of conceiving these trusts as a justifiable extension of the power of ownership: one is to see these trusts as expressive of the stake people have in what happens in the world after they die. The other is to conceptualise them as a valid response to the way we navigate the consciousness of mortality. 

Student members (including transferring lawyers) must attend all elements of the event in order to be awarded the Qualifying Session. This includes any lecture/talk/reception/dinner/speeches.

Members of the Inn only

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Learning Aims

After this session, students should be able to:

• Identify the philosophical issues raised by posthumous trusts.
• Assess the reasons one would conceive a posthumous trust.

Links to the Professional Statement, wider workings of the Bar, administration of justice or a public interest matter

This session is a wider public interest matter as it will discuss the philsophical reasons one chooses to conceive a posthumous trust.

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