Sulla legittimità del trust auto-dichiarato nell’ordinamento italiano (Trib. Termini Imerese, 30 novembre 2022)

The legitimacy of the self-declared trust in the Italian legal system is recognized by case-law as long as the trust pursues objectives worthy of protection for the legal system and this type of trust is recognized by the respective regulating law. However, the legitimacy does not derive from the combined interpetation of the provisions of paragraph III of article 2 of The Hague Convention, pursuant to which the settlor may retain for himself certain powers over the assets conferred in trust, and of the first paragraph of the same article which, in light of the use of periphrasis "place under control" instead of the verb to transfer, would not qualify the transfer of assets to a third party trustee as an essential feature of the trust. On the other hand, the legitimacy of the self-declared trust derives from the dogmatic of fiduciary obligations, which contemplates the "doubling of the physical person" in the figure of the fiduciary, in which two distinct persons coexist - in the respective roles of settlor and trustee - with two distinct assets and two distinct sets of rights and obligations. This dogmatic, although extraneous to the Italian legal system, is present in the legal systems to which the self-declared internal trusts often refer.