fiducie induite des faits ; fiducie au profit éventual de son auteur
GRAND DICTIONNAIRE TERMINOLOGIQUE :
- Constructive trust (according to the GDT ) = fiducie induite des faits n. f.
- Resulting trust (acc. to GDT) = fiducie au profit éventuel de son auteur n. f.
Le texte du régime ainsi que l'acte de fiducie précisent souvent ce qu'il advient du surplus, en cas de liquidation. Toutefois, s'il n'en est aucunement fait mention et que tous les employés reçoivent leur pleine rente acquise, l'employeur peut répliquer qu'il en résulte une - fiducie au profit éventuel de son auteur -, c'est-à-dire que tous les fonds en fiducie ont servi à satisfaire aux obligations et que tout surplus devrait revenir au constituant, soit l'employeur.
((Domaines d'emploi indiqués dans la source citée :)) fiducie; caisse de retraite.
The texts of the pension plan and trust agreement often specify what happens to surplus if the plan is wound up. However, if this is not specified and all employees have been granted their full earned pensions, the employer may argue that there is a - resulting trust -, in other words the trust has fulfilled its purpose and any surplus in it should revert to the settlor, i.e. employer.
My dicos give great lengthy explanations of both types of trusts, even stating that the courts often use the two terms to mean the same thing – very helpful.
Here are some links where you might find explanations of what they are, if that is what you need.
WHAT ARE SOME OF THE DIFFERENT FORMS OF TRUSTS?
Trusts come in a variety of forms and can be established in many different situations. Some common forms of Trusts include:
Asset Protection Trust - A type of Trust that is designed to protect a person's assets from claims of future creditors, frequently established in foreign countries.
Charitable Trust - A Trust - and there are many different types of charitable Trusts - established to benefit a particular charity or the public. Typically charitable Trusts are established as part of an estate plan to lower or avoid imposition of Federal (and some states') estate and gift taxes.
Constructive Trust - An implied Trust establish by operation of law. While a person may take legal title to property, equitable considerations require that the equitable title of such property remain with others. Typically fraud is a requirement for the establishment of a constructive Trust, the person who took legal title to the property did so as a result of a fraud brought upon the prior legal title holder.
Express Trusts - are those specifically created by the grantor under a Trust agreement or declaration of Trust.
Implied Trusts - arise from particular facts and circumstances in which courts determine that although there was not any formal declaration of a Trust, there was an intention on the part of the property owner that the property be used for a particular purpose or go to a particular person. For example, if a neighbor asks you to take care of her car for her when she is on vacation, and never returns, there was an implied Trust, as she was not making you a gift of the car.
Inter Vivos Trust - A Trust that is created during the lifetime of the grantor. A common type is a revocable "living" Trust in which the grantor transfers title to property to a Trust, serves as the initial Trustee, and has the ability to remove the property from the Trust during his/her lifetime.
Irrevocable Trust - A Trust that cannot be altered, changed, modified or revoked after its creation (absent extreme extenuating circumstances). Once a grantor transfers property to an irrevocable Trust, the grantor can no longer take the property back from the Trust.
"Living" Trust - A Trust created during the lifetime of a grantor which can be altered, changed, modified or revoked. Typically the grantor is the initial Trustee as well as the initial beneficiary of the Trust, with his/her spouse and children as the ultimate beneficiaries of the Trust.
Resulting Trust - A Trust that arises from, or is created by operation of law, when the legal title to property is transferred, but the beneficial interest is to be enjoyed by someone other than the person who got the legal title.
Special Needs Trust - A Trust that is established for a person who receives government benefits so as not to disqualify the beneficiary from such government benefits. Ordinarily when a person is receiving government benefits, an inheritance or receipt of a gift could reduce or eliminate the person's eligibility for such benefits. By establishing a Trust which provides for luxuries or other benefits which otherwise could not be obtained by the beneficiary, the beneficiary can obtain the benefits from the Trust without defeating his/her eligibility for government benefits. Often a Special Needs Trust includes a trigger which terminates the Trust in the event that it could be used to make the beneficiary ineligible for government benefits.
Spendthrift Trust - A Trust that is established for a beneficiary which does not allow the beneficiary to sell or pledge away his or her interests in the Trust. A spendthrift Trust is beyond the reach of the beneficiaries creditors, until such time as the Trust property is distributed out of the Trust and placed in the hands of the beneficiary.
Tax By-Pass Trust - A type of Trust that is created to allow one spouse to leave money to the other, while limiting the amount of Federal Estate tax bite that would be payable on the death of the second spouse.
Testamentary Trust - A Trust that is included under the terms and conditions established in a Will. Such Trusts take effect after the death of the person making the Will.
Totten Trust - A Trust that is created during the lifetime of the grantor by depositing money into an account at a financial institution in his or her name as the Trustee for another. This is a type of revocable Trust in which the gift is not completed until the grantor's death, or an unequivocal act reflecting the gift during the grantor's lifetime.
Many Trusts themselves establish "sub-Trusts". For example, a revocable "living" Trust might establish spendthrift Trust and a tax by-pass Trusts upon the death of the first. Trusts can be structured to handle a variety of situations but careful drafting is essential to make the plan work.
WHAT ARE CONSTRUCTIVE TRUSTS AND EQUITABLE LIENS?
A constructive trust and an equitable lien can be used to prevent unjust enrichment. Although there are technical differences, both can be very powerful remedies where a person has wrongfully taken your property, since you can prevent the wrongdoer, and the wrongdoer’s creditors, from keeping your property in the event of an insolvency.
In some cases, it is also possible to "trace" property and claim the fruits of the wrongdoer’s conduct. For example, if the wrongdoer misappropriates your 100 shares of IBM stock, then worth $5,000, and quickly sells the stock and uses the $5,000 to buy shares of a "high-flyer" that are now worth $25,000, using the remedies of constructive trust or equitable lien might enable you to recover the $25,000 in stock, instead of the ordinary compensatory damages of $5,000 (the value of the property at the time it was taken) plus interest.
For further information on constructive trusts, see "Trusts".