paraphrase in points:
(ii) Trusts of movable property
Trusts of movables may come about as a result of transfer to a trustee pursuant to the will of the founder or pursuant to some other juristic act inter vivos.
(a) The validity of testamentary trusts of movables
It is clear that the ordinary rules regarding the validity of wills apply regarding the validity of a will setting up a trust of movables, and it would be surprising were this not so. A will may, however, set up a trust whose validity is not to be determined by the same law which determines the will’s validity. Our authorities are silent on this possibility, but there seems to be little reason why the testator could not, expressly or impliedly, choose a law to govern the trust he founds. In the absence of such choice, however, how is the governing legal system to be selected? The lex situs of the movables, it is here submitted, has a relatively weak claim for consideration; the situs of movables is variable and given that the trust may last a long time seems a rather arbitrary connecting factor. The alternative connecting factors appear to be either the domiciliary law of the testator—which would accord with the normal rules governing choice of law in succession—or the law of the locus of administration of the trust. English law appears to favour the locus of administration, and Honoré apparently favours a policy-influenced choice between the two.
(b) The validity of trusts of movables inter vivos
Here too, the question is whether the validity of the inter vivos trust is to be determined by the founder’s domicile or the locus of administration. It seems agreed that the lex situs has only a small role to play. The founder, or settlor, can also choose the law applicable.
Our cases are, however, silent on which connecting factor is to be used in the event of the founder not having made a choice.
- Trusts of movable property can be created through a transfer to a trustee in a will or through a juristic act inter vivos.
- The validity of testamentary trusts of movables is determined by the same rules that apply to the validity of wills.
- A testator may choose the law that governs the trust they establish, but if no choice is made, the governing legal system may be selected based on the testator's domicile or the law of the trust's administration location.
- The validity of inter vivos trusts of movables can also be determined by the founder's domicile or the location of the trust's administration.
- The lex situs, or location of the movables, is not a significant factor in determining the validity of trusts.