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Power and property a Privy Council ruling grapples with the extent of settlors rights

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In an uncertain world it is perhaps not surprising that there is an increasing enthusiasm among the newly rich to settle their wealth in offshore asset protection trusts. There is, however, a reluctance to surrender possession and control of their assets to trustees, of whom they are likely to have had no previous experience.

To address this issue, the trust industry has devised the strategy of reserving powers to the settlor of the trust, in particular the power to direct to whom the trust assets should be distributed and a power to revoke the trust so that the trust assets re-vest in the settlor.

The wisdom of this approach has now been seriously called into question in light of the recent Privy Council decision of TMSF v Merrill Lynch [2011] UKPC 17, an appeal from the Cayman Islands.