For testamentary trusts, the Article 7 factors under the Hague Convention on trusts should be assessed at the date of making the will, not at the date of death or assent. This provides certainty and accords with the common law position. The proper law of a testamentary trust may be determined before the trust comes into existence. Will trusts do not come into existence until the executor assents, and until that time the executor holds the entire legal and beneficial interest in all property.
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