Challenges in the translation of trust instruments

A trust is a legal vehicle designed for protecting an estate (including from creditors), ensuring that it is dealt with in a certain manner. When a testator does not want to make an outright gift to a relative, for example, because they are a spendthrift or a mentally disabled person, settling a trust guarantees that the property is dealt with properly by a trustee for a beneficiary as per the testator’s instructions (in the case of express trusts). It is such a flexible mechanism that its use has extended beyond family settings into commercial contexts.

Trusts have evolved to adopt complex structures and a wide variety of forms (express, implied, resulting, constructive). The translation of trust instruments and other related documents is not without difficulties. These are the main challenges, with a particular focus on English-Spanish translation:

A COMPLEX AND DIVERSE VEHICLE

Depending on the settlor’s or testator’s wishes or circumstances, the desired structure can be complex to set up. This is why prior understanding of the English trust’s origins, how trusts work, the types of trusts available and the myriad of different situations in which a trust may be expressly set up or found to exist by the courts is recommended from the legal translator before tackling the translation of trust instruments and documents relating to breach of trust cases.

AN AREA OF THE LAW REQUIRING INTER-DISCIPLINARY RESEARCH AND / OR KNOWLEDGE FROM THE TRANSLATOR

Whereas trusts developed as a means to protect title to property they evolved to become a mechanism widely used in business, commercial and financial settings.

A fiduciary relationship may emerge to safeguard the rights of a beneficiary under a will (for example, against creditors in a bankruptcy or insolvency), the rights of members under a pension scheme, to take security in commercial transactions (a supply, construction or manufacturing contract, for example) or to protect debenture stockholders against the company issuing debenture stock.

The variety of situations bringing about this legal relationship means that the translators specialising in trusts will find themselves navigating across different areas of the law and disciplines in which they should be knowledgeable or at least possess research skills, depending on the specific project at hand: land law, company law, insolvency law, bankruptcy law, wills & successions, employment law, securities law, finance law, tax law and anti-money laundering (particularly concerning offshore trusts). This adds to the challenge of understanding the concept of the trust and how trust mechanisms operate.

LACK OF EQUIVALENCE IN OTHER JURISDICTIONS

Whereas mortis causa or testamentary trusts both in common law and civil law jurisdictions such a Spain share a common origin (the fideicommissum in Roman Law), inter vivos trusts were entirely developed in the former.

As for mortis causa trusts, the most similar device we can find in Spanish law is the ‘sustitución fideicomisaria‘ (governed by sections 781 et seq. of the Spanish Civil Code, Código Civil), a testamentary provision or codicil in a will whereby which the testator provides that certain property shall pass first to a fiduciario (similar to trustees) and after a certain period of time or upon completion of some condition (ie, death of the fiduciario), the property shall pass to a fideicomisario (similar to a beneficiary).

However, as Javier Pérez Manglano, a Spanish lawyer, Notary Public and legal translator, explains in his manual Spanish Law for Notaries, this ‘substitution by will’ is substantially different from mortis causa trusts found in common law jurisdictions. Whereas ownership is also split between a fiduciario and fideicomisarios, both hold full title to the estate, ie, there is no split between legal ownership and ‘equitable’ ownership as happens in English trusts, for ‘equity’ is a source of law unique to England and Wales. Also, the fiduciario or substitute has very limited powers over the property so passed and, contrary to English trusts, this fiduciary relationship is scarcely regulated.

This, together with the fact that inter vivos trusts used in family and commercial settings do not exist in Spain, means that the legal translator working from English into Spanish encounters a partial (if not total) lack of equivalence that is difficult to overcome. Such are these challenges that there is an ongoing debate on whether ‘trust’ and all the related terminology (trustor, trustee, on trust for, etc.) should be translated at all, although there are more functional translation options (administración fiduciaria or administrar fiduciariamente, for instance.


SOURCES

Sancho Durán, J., ¿Traduzco trust por fideicomiso?, La Linterna del Traductor

Pettit Philip H., Equity and the Law of Trusts. 11.ª ed. Oxford University Press. Oxford. 

Pérez-Manglano, J., Spanish Law for Notaries

Código Civil (Spanish Civil Code), sections 781 et seq., https://www.boe.es/buscar/act.php?id=BOE-A-1889-4763