1. Decleration of Trusts and Formalities

Question 1

What are the 3 Certanties for an Express Trust?

What are the 2 other rules that apply for a private trust?

Answer 1

1a - Certantity of Intention (To create a trust)

1b. Certanity of Subject Mater (What property will be on trust, and what the individual interest of the benificarys are)

1c. Certanity of Objects (Who the beneficiaries are, or what the class of benificarys is)

2a - BENIFICARY PRINCIPLE - Trust must be for the benefit of individuals (for private trusts, not charitable)

2b - Rule Against Perpetuties - Trust must vest (ie become unconditional) after 125 years of a will being executed or trust being created for trusts on or after 6 April 2010 (Perpetituies and Accumlations Act)

Question 2

What would happen to the property transferred if the trust failed owing to certainty of intention?

Answer 2

The proeprty would be have had been given as a gift

Question 3

Does a decleration of trust need to be in writing?

Does it need to include the word trust?

Answer 3

No and No, it can even be implied from conduct

Question 4

What 2 types of words should you look out for when establishing certantiy of intention to create a trust?

Answer 4

1. Precatory Words

Express a hope, wish or moral obligation - do not give rise to a trust

‘It is my desire’

‘In full confidence she would do what is right’

2. Imperative Words

Imperative words express a command and indicate a power of trust, imposing a duty on someone to act as a trustee and hold for someone else.

Can be written, spoken, or by conduct

Question 5

For Certainity of Subject matter, how must property be described?

Answer 5

The property must be certian, and so general or vague descriptions will fail - Such as ‘the bulk of my estate’, ‘some of my best linen’ ‘blue chip investments’

Question 6

What property needs to be separated for certantity of subject matter?

Answer 6

Tangible Property requires physcial seperation - (ie boxes of wine should be separated from other boxes)

Intagiable property, such as shares in a company, requires no separation

Question 7

For fixed trusts, what are the requirments for certainty of objects?

Answer 7

i. The Beneficiaries are specified by name in the trust,

ii. or it must be possible to draw up a complete list of every beneficiary (The Complete List Test )

Question 8

For Benifical Trusts to have certanity of objects, the Individual Ascertainability Test Applies.

What are the 3 requirements?

Answer 8

1. Conceptual Certainty

-Must be susceptible to legal definition (‘My Friends’ would fail)

2. Evidential Certainty

-Where obtaining evidence or whereabouts of beneficiaries is impractical, it fails

3. Administrative Workability

-Trust will fail if the definition is so wide it is administratively unworkable

Question 9

What is the Beneficary Principle?

Answer 9

The trust must be for the benifit of individuals (unless a charitable trust)

Question 10

What is the Rule Against Perpeutities?

Answer 10

The trust must vest (ie become unconditional) within 125 years of a new will being executed or trust becoming created for trusts made on or after 6th April 2010 (The Perpetuties and Accumilations Act 2009)

Question 11

What are the Disposition Requirements (FORMALITIES) of a Testamentary Trust?

Answer 11

Must Comply with s.9 of the Wills Act, which satisfies the formalities of s.53 LPA 1925

Question 12

What are the Disposition Requirements (FORMALITIES) of a Inter Vivos Trust?

Answer 12

Goverened by s.53 LPA:

1. Property Other than land
   -No additional requirements
2. Land / Interests in Land
   -s.53(1)(b) - Evidence of Trust must be in writing and signed
3. Exisiting Trust Interest
   -s.53(1)(c) - Disposition must be in writing and signed

Question 13

(FORMALITIES) s.53 LPA requires disposition of inter vivos trust property must have:

1. Land / Interest in Land - Evidence of Trust in writing and signed
2. Exisiting Trust Interest - Disposition must be in writing and signed

What is the effect of faluire to comply?

Answer 13

1. Land / Interest in Land - Makes the trust unenforceable (not void)
2. Exisiting Trust interest - Makes the disposition void (not unenforceable)