Challenges
Whether such a trust is a spendthrift trust on the U.S. model, a protective trust on the Commonwealth model or another form of discretionary trust, it is more likely to be subject to challenge under the common law doctrine of sham or under specific statutory provisions if any person setting up the trust (or their spouse and their spouse in turn as in a reciprocal trust):
- can benefit under its provisions;
- is the person under risk financially;
- benefits (whether permitted or not) from the trust; or
- if the person setting up the trust is at risk financially, if bankruptcy or divorce occurs soon after the establishment of the trust (fraudulent conveyance).
Offshore trusts and other asset protection vehicles typically do not prevent action against the individual concerned in his or her home country. Orders under divorce and creditor protection laws can typically be made against that individual notwithstanding the alleged independence of such trustees. If a judge determines that the trust settlor controls the assets of the offshore trust, the judge may order the settlor to repatriate the trust assets. Failure to comply with the court's order may lead to a finding of contempt of court and imprisonment. For this reason, a properly established asset protection trust should provide a clear separation between the settlor and those who exercise control over the trust assets.
Read more about this topic: Asset-protection Trust
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