Abstract/Summary

Lord Millett, delivering one of the leading judgments in the House of Lords, said in Twinsectra Ltd v Yardley:1 ‘A trust does not fail merely because the settlor's purpose in creating it has been frustrated: the trust must become illegal or impossible to perform. The settlor's motives must not be confused with the purpose of the trust; the frustration of the former does not by itself cause the failure of the latter.’ This seems to be a generally accepted statement of the law.2 Assuming it to be correct, the question then arises, ‘Why is there no doctrine of frustration in the law of trusts as there is in the law of contract?’ This short article will seek to explore the issue. Such a question doubtless sounds doomed to be merely an exercise in idle academic curiosity. And perhaps it is. But the hesitant and speculative suggestion here is that there is possible scope for recognising a doctrine of frustration in the law of trusts.