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Creation of express trusts in English law

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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
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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:
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must be able to say with certainty, if a claimant comes before them, whether he is or is not a beneficiary.
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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
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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
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Trusts of Land and Appointment of Trustees Act 1996
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: 920: 914: 911: 905: 902: 896: 893: 884: 881: 875: 872: 863: 860: 854: 851: 845: 842: 836: 833: 827: 824: 818: 815: 809: 806: 800: 797: 791: 788: 782: 779: 773: 770: 764: 761: 755: 752: 746: 743: 737: 734: 728: 725: 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: 1019: 1003: 998: 993: 989: 984: 980: 975: 971: 966: 962: 957: 953: 948: 944: 939: 935: 930: 926: 921: 917: 912: 908: 903: 899: 894: 887: 882: 878: 873: 866: 861: 857: 852: 848: 843: 839: 834: 830: 825: 821: 816: 812: 807: 803: 798: 794: 789: 785: 780: 776: 771: 767: 762: 758: 753: 749: 744: 740: 735: 731: 726: 722: 717: 713: 708: 704: 699: 695: 690: 686: 681: 677: 672: 668: 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: 924: 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: 282: 281: 276: 268: 267: 263: 262: 261: 260: 255: 250: 245: 240: 235: 227: 226: 222: 221: 220: 219: 214: 209: 204: 199: 191: 190: 186: 185: 184: 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: 620: 615: 614: 609: 608: 603: 602: 596: 594: 593: 587: 583: 582: 575: 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: 392: 388: 384: 383: 375: 365: 363: 359: 355: 351: 350: 344: 339: 337: 332: 328: 324: 320: 308: 303: 301: 296: 294: 289: 288: 286: 285: 280: 277: 275: 272: 271: 270: 269: 266:International 265: 264: 259: 256: 254: 251: 249: 246: 244: 241: 239: 236: 234: 231: 230: 229: 228: 224: 223: 218: 215: 213: 210: 208: 205: 203: 200: 198: 195: 194: 193: 192: 188: 187: 182: 179: 177: 174: 172: 169: 167: 164: 162: 159: 157: 154: 152: 149: 147: 144: 142: 139: 137: 134: 132: 129: 127: 124: 122: 119: 118: 117: 116: 112: 111: 106: 103: 101: 98: 96: 93: 91: 88: 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

Index

English trust law
Charitable trust
Constructive trust
Discretionary trust
Express trust
Purpose trust
Quistclose trust
Resulting trust
Secret trust
Beneficiary
Protector
Settlor
Trustee
Charitable Uses Act 1601
Charities Act 2006
Law of Property Act 1925
Perpetuities and Accumulations Act 1964
Perpetuities and Accumulations Act 2009
Public Trustee Act 1906
Recognition of Trusts Act 1987
Statute of Frauds (1677)
Trustee Act 1925
Trustee Act 2000
Trusts of Land and Appointment of Trustees Act 1996
Variation of Trusts Act 1958
Wills Act 1837
Account of profits
Breach of trust
Damages
Equitable remedy

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