As everyone knows, trusts are often used to avoid or subvert different rules of law. To combat such avoidance, jurisdictions enacted anti-avoidance rules; yet many of these rules do not fully prevent trusts-based avoidance. In some cases they reflect some jurisdictions’ acceptance of avoidance. We review the anti-avoidance rules applied by Canada, the U.S., the U.K., Australia and New Zealand to try and stymie trusts-based avoidance in three subject areas: distribution of family property on divorce or separation, income taxation, and eligibility for welfare benefits. We find that anti-avoidance regimes are often less than effective in tackling discretionary trusts, and offer recommendations to improve the treatment of such trusts for anti-avoidance purposes.
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Adam Hofri obtained his DPhil from Oxford in 2007, specializing in trusts and legal history. Earlier he obtained a BMus in electronic music production from Berklee College of Music and an MA in intellectual history from Tel-Aviv University. He also graduated from law school and was a clerk at the Supreme Court of Israel. Since 2007 he has been teaching at the Hebrew University of Jerusalem, eventually becoming Montesquieu Chair in Comparative Law and Legal History. Adam joined the Allard School of Law on January 2023.
Both Adam's research and teaching have long focused on trusts, including comparative doctrinal treatments of trust law topics, empirical studies of the ways trusts are used in practice by different sorts of clients, studies of many jurisdictions' recent dramatic reforms to their law of trusts, looking to make that law alternately client- and practitioner-friendly, historical and socio-legal accounts of the development of trust law and practice in England and Palestine/Israel, and theoretical accounts of the social and economic functions trusts fulfil, including as a tool for subverting other parts of the law.
This paper is co-authored with Mark Bennett of the Victoria University of Wellington, New Zealand (https://people.wgtn.ac.nz/mark.bennett).
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