Publication Date

1-1-2012

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Trust and estates, Encapsulated trust, Fiduciary duties, Economic theory

Abstract

What nexus exists between the philosophy of trust and the law of trusts & estates (“T&E”)? This article suggests eschewing stilted economic theory in favor of a more robust understanding of the basic philosophical concept of trust to uncover the proper path that evolving T&E law should follow. In particular, the article advocates embracing the concept of “encapsulated trust” to ascertain the shape that fiduciary relationships should take in the realm of T&E doctrine. In simple terms, encapsulated trust represents a rational expectation that those in whom we place our trust will take our interests into account (or “encapsulate” our interests) in determining any particular course of action that affects us. In contrast to prevailing economic theories that remain out of touch with the real world of T&E practice, embracing “encapsulated trust” will provide not only a more descriptively accurate account of existing fiduciary obligations within T&E relationships but provide a normatively superior approach for guiding T&E doctrine in an ever changing world.

Publication Statement

Copyright held by the authors. User is responsible for all copyright compliance.

Originally published as Michael R. Siebecker & Lee-Ford Tritt, Promoting Trust in Trusts & Estates, 5 International Journal of Arts and Sciences 751 (2012).

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