414:
450:
such as whether a claimant is a beneficiary, cannot be answered; this does not always lead to invalidity. Ascertainability is where a beneficiary cannot be found, and administrative unworkability arises when the nature of the trust is such that it cannot realistically be carried out. Trustees and the courts have developed various ways of resolving uncertainties, including the appointment of experts to work out evidential uncertainty, and giving trustees the power to decide who is or is not a beneficiary.
438:
trust, rather than hold that the trust is void. Certainty of subject matter means that it must be clear what property is part of the trust. Historically the property must have been segregated from non-trust property; more recently, the courts have drawn a line between tangible and intangible assets, holding that with intangible assets there is not always a need for segregation. Certainty of objects means that it must be clear who the
389:) and have a receiver appointed cannot have trusts directly enforced against them, as they no longer have control over their property. Where there is no receiver, the mentally disordered person's trust will be held void, unless it was made during a lucid period when the person was capable of understanding their actions. Corporations and statutory bodies only have the powers granted to them by their
379:
addition, unless they are soldiers or "mariners at sea", they cannot form a valid will. Where a minor tries to create a trust, it will be held voidable, and can be repudiated by him when he reaches majority, or soon after. Where the trust is clearly of detriment to the minor, the courts may decide to take it as void; the individual, when he reaches majority, could alternately plead
527:
As a general rule, there is no requirement for particular formalities in trust instruments, they can be oral or written. The only requirement is that they show an intention to create a trust. The exceptions are where it is a transfer of land, the transfer of existing equitable interests, or where the
484:
is that "equity will not assist a volunteer"; if someone does not have an interest in property, they cannot bring a court case. When trusts are not properly constituted, the trustees and beneficiaries have no equitable interest in the property, and so are volunteers. There are several exceptions to
378:
The first requirement of an express trust is capacity; the person creating the trust must be legally capable of doing so. Generally speaking, anyone capable of holding property can form a trust, although there are exceptions. A minor cannot hold land, and therefore cannot create a trust of land; in
548:
This means that there must be evidence of the trust's existence should someone choose to enforce it, and does not necessarily mean it need be in existence at the trust's creation. Contracts for the sale or disposition of an interest in land, such as a contract to create a trust, must additionally
345:
is that "equity will not assist a volunteer"; the courts will not look at the case. To get around this, the courts have developed exceptions to this rule for situations when the settlor has done "all that he could do", the trustees or beneficiaries have acquired the property in a different way, or
449:
Uncertainty comes in four categories: conceptual uncertainty, evidential uncertainty, ascertainability and administrative unworkability. Conceptual uncertainty arises when the language is unclear, which leads to the trust being declared invalid. Evidential uncertainty is where a question of fact,
333:
must show certainty of intention to create a trust, certainty of what the subject matter of the trust is, and certainty of who the beneficiaries (or objects) are. Where there is uncertainty for whatever reason, the trust will fail, although the courts have developed ways around this. Constitution
437:
wishes to create a trust; this is not dependent on any particular language used, and a trust can be created without the word "trust" being used, or even the settlor knowing he is creating a trust. Since the 1950s, the courts have been more willing to conclude that there was intention to create a
325:'s ability to create a trust in the first place; generally speaking, anyone capable of holding property can create a trust. There are exceptions for statutory bodies and corporations, and minors who usually cannot hold property can, in some circumstances, create trusts. Certainty refers to the
595:, if the owner of a sole beneficial interest instructs his trustees to transfer the property, and this is done to transfer the beneficial interest and not simply to change the trustees, this does not fall under Section 53(1)(c) and requires no specific formalities.
466:, merely handing the property to the trustees is sufficient, assuming it comes with the relevant intention to create a trust. In some circumstances, providing the intention and telling the trustees where to find the property is sufficient, as in
588:
gave disposition its "natural meaning", saying that it meant "a transaction whereby a beneficiary who has a beneficial interest at the beginning of the transaction no longer has it at the end of the transaction". Under the rule established in
557:(i) A contract for the sale or other disposition of an interest in land can only be made in writing, and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.
352:. Formality refers to the specific language or forms used when transferring property. For chattels, no formal language or documentation is needed, unless it is made as a will. For land, the transfer must be drafted in line with the
574:(c) A disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or his agent thereunto lawfully authorised in writing or by will.
561:(iii) The document incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.
606:
544:(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.
364:, the Law of Property Act 1925 must also be followed; much of the case law in this area has centred on the meaning of "dispose", with many cases involving people attempting to avoid tax.
485:
this maxim. The courts are willing to hear cases where the transfer was not completed, providing the intended beneficiaries or trustees have gained an interest through being made
480:. When dealing with shares, the transfer is not complete until a transfer document has been completed and the company has entered the change of ownership in its books. One of the
616:. Where a beneficiary declares he is holding the property on behalf of another, this would be the creation of a sub-trust and not subject to specific formalities. However, under
622:, such a sub-trust will only be held to be valid if there is some difference between the trust and sub-trust, and if the trustee-beneficiary has some duties to perform.
442:, or objects, are. The test for determining this differs depending on the type of trust; it can be that all beneficiaries must be individually identified, or that the
618:
600:
468:
578:
Much of the debate in this area is over the definition of "disposition", and unsurprisingly almost all of the cases involve people trying to avoid tax. In
550:
357:
170:
45:
413:
612:
247:
580:
648: (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witnesses.
304:
433:
must show certainty of intention, subject matter and object. Certainty of intention means that it must be clear that the settlor or
585:
642:(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
140:
135:
385:
if he had been too young to appreciate the nature of forming a trust. People who are considered mentally disordered (under the
321:
must involve four elements for the trust to be valid: capacity, certainty, constitution and formality. Capacity refers to the
1038:
1016:
417:
604:. Nominating somebody to receive benefits of a pension fund should the pensioner die is also not a valid disposition, as in
206:
40:
559:(ii) The terms may be incorporated in the document either being set out in it or by reference to some other document.
232:
638:(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
630:
For a will to be valid (and therefore, for a trust made in a will to be valid) it must comply with
Section 9 of the
60:
35:
297:
68:
570:
For disposing of existing equitable interests, the Law of
Property Act 1925 provides in Section 53(1)(c) that:
150:
55:
446:
must be able to say with certainty, if a claimant comes before them, whether he is or is not a beneficiary.
393:
or authorising statute; if these do not authorise the creation of trusts, any such trust will be held to be
242:
175:
73:
1059:
522:
290:
273:
237:
341:
If property has not been transferred, the potential trustees and beneficiaries are volunteers, and an
334:
means that for the trust to be valid, the property must have been transferred from the settlor to the
390:
252:
537:
477:
353:
201:
130:
120:
373:
145:
104:
386:
278:
216:
640:(b) it appears that the testator intended by his signature to give effect to the will; and
497:
348:
8:
89:
509:
473:
361:
196:
125:
598:
Simply disclaiming a beneficial interest does not fall within
Section 53(1)(c), as in
1034:
1012:
463:
408:
326:
257:
155:
94:
21:
458:
The trust must then be formally constituted, by the transfer of its property to the
591:
476:
in land, it must be transferred by writing in accordance with
Sections 52-3 of the
430:
330:
211:
165:
160:
1026:
481:
422:
342:
631:
610:, and neither is nominating a beneficiary under a life insurance policy, as in
381:
180:
1053:
491:
439:
395:
507:, or where it would be "unconscionable" to hold the gift invalid, as in
486:
434:
536:
Express trusts over land must comply with
Section 53(1)(b) of the
503:
459:
443:
335:
322:
99:
1006:
870:
868:
420:, who first conceptualised the three certainties in
551:
Law of
Property (Miscellaneous Provisions) Act 1989
358:
Law of
Property (Miscellaneous Provisions) Act 1989
171:
865:
501:, or where the settlor did all he could do, as in
1051:
646: (i) attests and signs the will; or
634:. This provides that no will is valid unless:
298:
1007:Edwards, Richard; Nigel Stockwell (2007).
305:
291:
607:Re Danish Bacon Co Ltd Staff Pension Fund
319:creation of express trusts in English law
891:
889:
412:
141:Perpetuities and Accumulations Act 2009
136:Perpetuities and Accumulations Act 1964
1052:
1025:
565:
429:For an express trust to be valid, the
329:required for a trust to be valid. The
1033:(6th ed.). Routledge-Cavendish.
886:
489:of the settlor's estate (the rule in
402:
667:
472:. Where the property is land or an
13:
14:
1071:
1011:(8th ed.). Pearson Longman.
1000:
988:
979:
970:
961:
952:
943:
934:
925:
916:
907:
898:
877:
856:
847:
838:
829:
820:
811:
802:
793:
784:
775:
766:
757:
748:
739:
453:
730:
721:
712:
703:
694:
685:
676:
658:
151:Recognition of Trusts Act 1987
1:
652:
549:comply with Section 2 of the
516:
176:Variation of Trusts Act 1958
7:
367:
10:
1076:
644:(d) each witness either -
523:Formalities in English law
520:
406:
371:
274:Conflict of laws of trusts
528:trust is made in a will.
495:), or the gift was given
391:memorandum of association
253:Rule against perpetuities
625:
538:Law of Property Act 1925
478:Law of Property Act 1925
354:Law of Property Act 1925
346:where the gift was made
156:Statute of Frauds (1677)
131:Law of Property Act 1925
121:Charitable Uses Act 1601
553:, which provides that:
540:, which provides that:
531:
374:Capacity in English law
360:. When disposing of an
146:Public Trustee Act 1906
650:
576:
563:
546:
426:
387:Mental Health Act 1983
279:Hague Trust Convention
799:Hudson (2009) p.146-7
763:Hudson (2009) p.123-4
636:
619:Grainge v Wilberforce
572:
555:
542:
416:
985:Edwards (2007) p.114
967:Edwards (2007) p.111
931:Edwards (2007) p.110
913:Edwards (2007) p.109
895:Edwards (2007) p.108
874:Edwards (2007) p.107
862:Edwards (2007) p.101
835:Edwards (2007) p.106
826:Edwards (2007) p.100
601:Re Paradise Motor Co
498:donatio mortis causa
469:Thomas v Times Books
349:donatio mortis causa
883:Hudson (2009) p.211
808:Hudson (2009) p.138
790:Hudson (2009) p.145
781:Hudson (2009) p.144
772:Hudson (2009) p.143
754:Hudson (2009) p.120
745:Hudson (2009) p.117
736:Hudson (2009) p.104
700:Edwards (2007) p.93
682:Edwards (2007) p.92
673:Edwards (2007) p.91
664:Edwards (2007) p.90
566:Equitable interests
46:Discretionary trust
1060:English trusts law
727:Hudson (2009) p.97
718:Hudson (2009) p.87
709:Hudson (2009) p.79
691:Hudson (2009) p.73
510:Pennington v Waine
474:equitable interest
427:
362:equitable interest
197:Account of profits
126:Charities Act 2006
41:Constructive trust
1040:978-0-415-49771-8
1031:Equity and Trusts
1018:978-1-4058-4684-4
1009:Trusts and Equity
994:Hudson (2009) 269
409:Three certainties
403:Three certainties
327:three certainties
315:
314:
258:Three certainties
248:Trustee liability
22:English trust law
1067:
1044:
1027:Hudson, Alastair
1022:
995:
992:
986:
983:
977:
976:(1889) 5 TLR 436
974:
968:
965:
959:
956:
950:
947:
941:
938:
932:
929:
923:
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914:
911:
905:
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827:
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815:
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797:
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773:
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719:
716:
710:
707:
701:
698:
692:
689:
683:
680:
674:
671:
665:
662:
592:Vandervell v IRC
482:equitable maxims
431:trust instrument
331:trust instrument
307:
300:
293:
212:Equitable remedy
166:Trustee Act 2000
161:Trustee Act 1925
36:Charitable trust
18:
17:
1075:
1074:
1070:
1069:
1068:
1066:
1065:
1064:
1050:
1049:
1041:
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998:
993:
989:
984:
980:
975:
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962:
957:
953:
948:
944:
939:
935:
930:
926:
921:
917:
912:
908:
903:
899:
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749:
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677:
672:
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663:
659:
655:
647:
645:
643:
641:
639:
628:
568:
560:
558:
534:
525:
519:
456:
423:Knight v Knight
411:
405:
376:
370:
343:equitable maxim
311:
202:Breach of trust
69:Resulting trust
12:
11:
5:
1073:
1063:
1062:
1046:
1045:
1039:
1023:
1017:
1002:
999:
997:
996:
987:
978:
969:
960:
951:
942:
933:
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915:
906:
897:
885:
876:
864:
855:
846:
837:
828:
819:
810:
801:
792:
783:
774:
765:
756:
747:
738:
729:
720:
711:
702:
693:
684:
675:
666:
656:
654:
651:
632:Wills Act 1837
627:
624:
586:House of Lords
567:
564:
533:
530:
521:Main article:
518:
515:
455:
452:
407:Main article:
404:
401:
382:non est factum
372:Main article:
369:
366:
313:
312:
310:
309:
302:
295:
287:
284:
283:
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186:
185:
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183:
181:Wills Act 1837
178:
173:
168:
163:
158:
153:
148:
143:
138:
133:
128:
123:
115:
114:
110:
109:
108:
107:
102:
97:
92:
84:
83:
79:
78:
77:
76:
71:
66:
58:
53:
48:
43:
38:
30:
29:
28:Types of trust
25:
24:
9:
6:
4:
3:
2:
1072:
1061:
1058:
1057:
1055:
1048:
1042:
1036:
1032:
1028:
1024:
1020:
1014:
1010:
1005:
1004:
991:
982:
973:
964:
955:
946:
937:
928:
919:
910:
901:
892:
890:
880:
871:
869:
859:
850:
844:1 All ER 1217
841:
832:
823:
814:
805:
796:
787:
778:
769:
760:
751:
742:
733:
724:
715:
706:
697:
688:
679:
670:
661:
657:
649:
635:
633:
623:
621:
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615:
614:
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608:
603:
602:
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594:
593:
587:
583:
582:
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571:
562:
554:
552:
545:
541:
539:
529:
524:
514:
512:
511:
506:
505:
500:
499:
494:
493:
492:Strong v Bird
488:
483:
479:
475:
471:
470:
465:
461:
451:
447:
445:
441:
440:beneficiaries
436:
432:
425:
424:
419:
418:Lord Langdale
415:
410:
400:
398:
397:
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388:
384:
383:
375:
365:
363:
359:
355:
351:
350:
344:
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328:
324:
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308:
303:
301:
296:
294:
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277:
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272:
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266:International
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249:
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117:
116:
112:
111:
106:
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101:
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87:
86:
85:
82:Functionaries
81:
80:
75:
72:
70:
67:
65:
63:
59:
57:
56:Purpose trust
54:
52:
51:Express trust
49:
47:
44:
42:
39:
37:
34:
33:
32:
31:
27:
26:
23:
20:
19:
16:
1047:
1030:
1008:
1001:Bibliography
990:
981:
972:
963:
954:
949:1 All ER 486
945:
940:2 All ER 625
936:
927:
918:
909:
900:
879:
858:
849:
840:
831:
822:
817:2 All ER 241
813:
804:
795:
786:
777:
768:
759:
750:
741:
732:
723:
714:
705:
696:
687:
678:
669:
660:
637:
629:
617:
611:
605:
599:
597:
590:
579:
577:
573:
569:
556:
547:
543:
535:
526:
508:
502:
496:
490:
467:
457:
454:Constitution
448:
428:
421:
394:
380:
377:
347:
340:
318:
316:
74:Secret trust
61:
50:
15:
613:Gold v Hill
396:ultra vires
238:Formalities
90:Beneficiary
922:1 All ER 1
904:All ER 603
853:1 WLR 2075
653:References
581:Grey v IRC
62:Quistclose
517:Formality
95:Protector
1054:Category
1029:(2009).
958:1 FLR 54
487:executor
464:chattels
460:trustees
444:trustees
435:testator
368:Capacity
356:and the
336:trustees
189:Remedies
113:Statutes
504:Re Rose
323:settlor
243:History
233:Cy-près
217:Tracing
207:Damages
105:Trustee
100:Settlor
1037:
1015:
584:, the
462:. For
626:Wills
225:Other
64:trust
1035:ISBN
1013:ISBN
532:Land
317:The
1056::
888:^
867:^
513:.
399:.
338:.
1043:.
1021:.
306:e
299:t
292:v
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