The Posthumous Trust: From Dead Hand to Mortality Management

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, 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.

About the speaker:
Irit Samet is a Professor of Law at The Dickson Poon School of Law, King’s College London, where she also serves as a head of department (private law, IP digital law). She specialises in theory of equity, trust law, and philosophy of private law, with her scholarly contributions focusing on the intersection of private law and morality.

She is the author of Equity: Conscience Goes to Market (OUP, 2018) and has co-edited Philosophical Foundations of the Law of Equity (OUP, 2020) and Philosophical Foundations of Express Trust (OUP, 2023). She has published papers in leading journals such as the Modern Law Review, Cambridge Law Journal, Oxford Journal of Legal Studies, American Journal of Jurisprudence, and Law Quarterly Review.