Considerations for Issues and Measures of“Non-Commercial Trust”Undertaken by
Trustees as Individuals
Yusuke Noguchi（Resona Bank, Ltd.）“Private trust”can be referred to a scheme for the following twopurposes.（1）For the purpose of property management in the aged
society.（2）For the purpose of succession the property after the deathof him/her.
Turning to the trustee,“private trust”can be classified into
two patterns.（1）“Commercial Trust”pattern: Trustee is corporate
fiduciary（trust bank or trust company）.（2）“Non-Commercial Trust”
pattern: Trustee could be relatives of settlor, specialists including
certified public accountant tax specialist, and lawyer（ bengoshi andshihoushoshi）.

The central consideration in this report is“private trust”of“NonCommercial Trust”pattern（and the relatives of settlor who do nothave particular expertise, as trustee）.
The benefits of trust（in case of trustees as individuals）areconsidered the following three points.（1）The trustee may administer
trust affairs very close to the beneficiaries or the settlors, with
understanding of the status of beneficiaries or the original intentionsof the settlors. （2）It may be possible to target trust properties whichhave difficulty in terms of volume and type when handling by thecorporate trustee.（3）The experts may undertake trust in a private
capacity, and administer trust affairs with utilizing their expertise.
On the other hand, the disadvantage is considered the following― 171 ―

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two points.
（1）If trustees as individuals lack of know-how to operate andmanage trust properties properly, at the same time various obligations
are unconditionally relaxed, it may be concerned about abuse of trustby the trustee against settlor’s intention.
（2）If trustees as individuals who do not recognize that thetrustee had room to relax the obligation, assume a strict obligation
not meeting their management capacity, it may be concerned aboutcommitting a breach of duty unconsciously in administering trustaffairs.
These concerns are based on the following matters. Under2006 New Trust Act, duties of a trustee（ex; Duty of Care, Duty toSegregate Property, Duty of Loyalty）can be relaxed if terms of trust
otherwise provide. Duties of corporate trustee are never mitigatedunder the restrictions of the Trust Business Act.
On the other hand, trustees as individuals are not subject to thetrustee of the Trust Business Act regulations, and to comply with theprovisions of the Trust Act as a default rule; trustees as individuals
can enjoy the full benefits of relaxation of duties.
In light of the foregoing disadvantages, it also showed awarenessof the issues below.（1）Party autonomy which has been emphasizedin the New Trust Act can be exhibited through relaxation/weighting
the duties properly in case of trustees as individuals?（2）To protect
beneficiaries, the guideline for administering trust affairs is needed?
In addition, is there suggestion for development of“Non-CommercialTrust”through this report?
Upon consideration of the issues, two standpoints of eligibility
required for trustees as individuals are shown. These are“means test”
and“continuing strength”.
Subsequently, the levels of relaxation/weighting the duties based― 172 ―

on the each contents of the trust administration are considered.
Through the assumption of three cases, and analyzing theduty of the trustees as individuals in each part of the typical trust
administration,“the risks behind mitigation”are divided into threelevels of terms.
Based on these studies, the following two points have been
proposed as the direction of solving the problem of the trust（in caseof trustees as individuals）.
（1）Mutually complementary relationship between trustees as
individuals and corporate trustees is desired; Trustees as individuals
undertake trust with a simple scheme rooted in the daily life of elderlypersons. Corporate trustees undertake trust with complex and longterm schemes（in order to across the generations）.
（2）To support the trustees as individuals, advices from theexperts（as follows）are desired; lawyers（bengoshi and shihoushoshi）（designated as the supervisor of trust）, certified public accountants
and tax specialists（pre-planning, during the period）.
Also, the views of“Non-Commercial Trust in the future”areshown; taking advantage of the trust units based on community（theapplications of the British public trust system, civil use of trust as areconstruction from“Eastern Japan Severe Earthquake Disaster”）.
Finally, in order to discern the limits of the relaxation of duty oftrustee, the future progress of academic discussion about“essentialelements of trust”is expected.

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