Changes and challenges of the role of a trustee in a commercial context: Does this separate commercial trusts from trusts?

As well as acting as a guardian of family assets, trusts have increasingly become a commercial device to manage portfolios of financial assets. One of the most dramatic transformations of a role that has accompanied the evolution of trusts has been that of the trustee. The objective of this paper is to examine the key changes and challenges that the commercial use of trusts has brought to the trustee’s role and to answer whether or not those changes or challenges suggest to separate commercial trusts from trusts. It argues that the role of a trustee in a commercial context has developed in various ways from that of a traditional family trust so that it accommodates the complex commercial uses of trusts; however, the fundamental rules of trusts and the essential duties of trustees have remained the same, and the trust law itself has continually developed to resolve problems that arise in the commercial uses of trusts. Thus, it is neither correct nor necessary to separate a commercial trust from a traditional trust in order for it to be an independent legal vehicle; this would consequently require the establishment of a new set of rules.