The origin of the Anglo-Saxon institution of the trust dates back to medieval England, when knights heading off to the Crusades entrusted their lands to an administrator, who managed them on behalf of the knight’s wife and children until his return. As disputes arose between the settlor and the trustee, the concept of dual ownership began to take shape in the common law countries: the assets were transferred to the trustee, who became the legal owner, while the settlor held an equitable title. These are two distinct forms of ownership with different scopes and content. In addition to its many applications in the corporate world, the trust can also be used to establish special management of assets and rights forming part of an estate, in defense of some interests that deserve an special protection. In the family law context, it can also be used to secure the payment of maintenance or support in matrimonial disputes, or to create a separate estate dedicated to family expenses and shielded from personal debts.

However, this Anglo-Saxon concept of dual ownership fundamentally conflicts with the unitary ownership system found in civil law countries, which include most European countries, such as Spain. The Spanish Supreme Court is clear regarding the treatment of Anglo-Saxon trusts in Spain, as evidenced by its Ruling 1632/2008 of April 23, from the First Chamber: “A trust is an arrangement that establishes a fiduciary relationship, where one person holds legal title to property but is under an equitable obligation to maintain or use the property for the benefit of another. A trust may be created inter vivos or mortis causa. It is a legal instrument widely used in common law countries for various purposes; however, it does not exist in Spanish law, either in substantive law or in private international law. (…) As the trust is not recognized as a legal concept, nor is it compatible with our inheritance law, we are limited to apply the provisions of the deceased’s will to the extent that they are valid and in accordance with Spanish law.”

The former Directorate-General of Registries and Notaries (now known as the Directorate-General of Legal Security and Public Authority) also addressed the issue in its Resolution of January 24, 2008, regarding the possibility of registering property rights in the name of a legal figure similar to the Anglo-Saxon trust: the “private interest foundation”, which does not exist in Spanish Law. The case refers to an institution established under Panamanian Law, and created for the purpose of preserving assets and managing the estate assigned by the founder, first for the benefit of the founders’ parents, and after their death, for the benefit of the founders themselves. Since it was impossible to acknowledge legal personality of a private interest foundation under Spanish Law, it was equally impossible to register real estate located in Spain, acquired by donation, in the name of that foundation.

Thus, as of today, it remains impossible to recognize or apply the Anglo-Saxon trust under Spanish law.