CUHK Business School Research Reveals Share Transfer Restriction in Family Trusts May Distort Firm Decisions

HONG KONG,
CHINA -�Media OutReach - 22 October 2019 - Ownership
structure plays a critical role in the incentives and behavior of business
organizations. The effects of firm ownership dispersion across managers and
investors has been examined in past studies. Yet Prof.
Joseph P. H. Fan, Professor of School of Accountancy
and Department of Finance at The Chinese University of Hong Kong (CUHK)
Business School has extended the literature by examining the roles of ownership
structure within a controlling family.

 

His research “The
impact of ownership transferability on family firm governance and performance:
The case of family trusts” examined specifically on the family
trust structure, which is commonly used among Fortune 500 family firms.

 

Companies controlled by family trusts or similar structures
include The New York Times,
department store chain Wal-Mart and global furniture retailer Ikea.

 

“Family trusts are typically established for
inheritance tax avoidance, asset protection against undesirable events such as
divorce, bankruptcy, taxation and hostile takeovers,” says Prof. Fan.
“The trust structure often locks controlling ownership within a family for
a very long period.”

 

In collaboration with Dr. Winnie S. C. Leung from the
University of Hong Kong, the study focused on 216 distinct family firms listed
on the Hong Kong Stock Exchange, including 72 firms using family trusts and 144
firms using direct ownership.

 

The data was collected over the period from 1990 to 2008,
which included the 2006 abolition of inheritance tax in Hong Kong, which ended
the tax advantage of family trusts. 84 of the firms were in manufacturing, 52
in finance, insurance and real estate and 44 in wholesale and retail.

 

The
Cost of Family Disputes

Different from prior studies, which almost unanimously focus
on conflicts between corporate insiders and outsiders, his study looked at the
impacts of intra-family ownership structures and conflicts between family
members on firm behaviors and performance.

 

For example, he found that the sibling structure of a
family, in particular the age gap between the first and last sons of the
founder, could be a source of conflicts.

 

“When the age gap is large, sons or daughters arguably
have more diverse interests and very different ideologies for managing family
issues. A large age distance also indicates high conflict potential,” he
says.

 

Prof. Fan says that founders of firms are not always able to
correctly predict the consequences of adopting a family trust structure. In
particular, they may underestimate the cost of keeping family harmony, or
counteracting family disputes when a trust ties descendants up in the family
business.

 

“The share transfer restriction may induce family
members to shirk, making family conflicts difficult to resolve and distort
company decisions,” he says.

 

Prof. Fan cites a well-known case of Sun Hung Kai Properties,
a leading property developer and the second largest business conglomerate in
Hong Kong.

 

Its founder, Kwok Tak-seng, transferred controlling interest
of the company into a family trust as part of his succession plan before he
died in 1990. The trust was set up in Jersey with a 100-year rule and with his
wife and three sons as the beneficiaries. The trust appointed the three sons to
co-manage the family business. Unfortunately, the brothers were not able to
stay in harmony after Kwok died.

 

The Lo family, the founding family of prominent property
developer Great Eagle Group in Hong Kong, is another victim of family fighting
in which family trust ownership is at the center of the dispute.

 

“There was hardly an exit from the family ownership
structure because the family stakes were locked up in the trust.”

 

“The trust actually prolonged the family infighting,
and the corporate value of the business eroded substantially in the
process,” says Prof. Fan.

 

He further explains that the ability to transfer ownership
is an important mechanism for resolving disputes between family members.

 

“When family members directly hold ownership, their
income or dividend and voting rights are clearly delineated. If a family member
decides to exit the family business, he or she can simply sell his or her
shares either back to the family or to outsiders.”

 

In other words, the selling family members can walk away
with a fortune, while the active buying family members can have a more robust
incentive and control over the firm.

 

“In contrast, the use of a family trust suppresses the
transfer rights of the family ownership and blocks this buyout channel,”
he says.

The trust deed typically specifies a long or even indefinite
period before the trust can be dissolved and ownership can be transferred.

 

The
Negative Consequences of Using a Trust

The use of a trust induces the common pool problem. Through
marriages and having children, the controlling family increases in size and
complexity over time. More and more family members are added as trust
beneficiaries.

 

However, in an acute environment where competition is high,
trust beneficiaries are inclined to exploit resources from the family business
for their own benefit and sustain less for future corporate development.

 

“Our study shows that when family conflict potential
increases, firms that adopt a family trust tend to have higher dividend
payouts, lower capital expenditures and a worse performance.”

 

Moreover, for firms using a family trust, family managers
may find it hard to consolidate control to make timely critical decisions.

 

“The results support our hypothesis that a founder’s
choice of trust that underestimates the family conflict potential distorts
family managers’ behavior when making company decisions.”

 

As the family’s size grows over time, the average cash flow
rights of a given family beneficiary shrink. This further tempts family
beneficiaries to focus on the near term.

 

“When a family trust provides no exit for resolving
conflicts, consolidation of control is difficult. Unhappy families with
entrusted ownership can impede corporate development and destroy firm
value,” Prof. Fan says.

 

Implications

“Our study not only adds to the existing academic
literature, but also informs business owners and practitioners contemplating
the ownership structures of the firms they serve,” says Prof. Fan, adding
that the findings shed light on the direction of future research.

 

“Owing to a lack of information, we were unable to
examine the role of family governance in mitigating family conflict potential,
and look at original trust deeds when they include conflict prevention clauses.
Both these important issues merit further research,” he says.

 

Reference:

Joseph
P.H.Fan and Winnie S.C.Leung, The impact of ownership transferability on family firm governance
and performance: The case of family trusts, Journal
of Corporate Finance (2018).

About CUHK Business School

CUHK
Business School comprises two schools — Accountancy and Hotel and Tourism Management — and four
departments — Decision Sciences and
Managerial Economics, Finance,
Management and Marketing. Established in Hong Kong in 1963, it is the first
business school to offer BBA, MBA and Executive MBA programmes in the region.
Today, the School offers 8 undergraduate programmes and 20 graduate programmes including MBA, EMBA,
Master, MSc, MPhil and Ph.D.

 

In the Financial
Times Global MBA Ranking 2019, CUHK MBA is ranked 57^th. In FT‘s 2018 EMBA ranking, CUHK EMBA is ranked 29^th in the world. CUHK Business School
has the largest number of business alumni (36,000+) among universities/business schools in Hong Kong — many of whom are key business
leaders. The School currently has about
4,400 undergraduate and postgraduate
students and Professor Kalok Chan is the Dean of CUHK Business School.

 

More information is available at www.bschool.cuhk.edu.hk or by
connecting with CUHK Business School on
Facebook: www.facebook.com/cuhkbschool and LinkedIn: www.linkedin.com/school/3923680/.