Chapter 5: Formalities and Constitution Flashcards
- Introduction
This chapter explores the formalities for declaration and constitution of trusts. When we talk about ‘formalities’, we mean the formal requirements (if any) for giving an
arrangement legal effect. For example, is it necessary to put the arrangement into writing or use
some other specific formal document such as a deed?
Because trusts involve both legal and equitable title, we need to consider the formalities (if any) in
respect of both interests.
1.1 Rights of legal owner
Before we start to look at formalities, let’s remind ourselves of the main ways in which legal owners
can deal with their proprietary interests. Please note that we are focusing on gratuitous methods
of dealing with assets. We are not concerned with transactions made for consideration. We are also focusing on the formalities for inter vivos transactions. This chapter is not concerned with gifts or trusts created by will although we will briefly touch on wills at the end of the chapter. There are three broad things a full legal owner can do gratuitously with their property. They can:
(a) Make a gift;
(b) Declare themselves to be a trustee; or
(c) Transfer the property on trust.
1.1.1 Gift
A gift is the most simple thing a full legal owner can do with their interest. It simply involves the
transfer of full legal ownership from one person (the donor) to another (the donee). When it comes to formalities, therefore, it is only necessary to consider the formalities for transferring legal title from the donor to the donee.
1.1.2 Self-declaration of trust
In contrast, a trust involves the creation of distinct legal and equitable interests in property. If we
take a simple self-declaration of trust, it involves the full legal owner creating a new equitable interest in the same property. So we start with legal title only and end with separate legal and equitable interests. There is no change in legal ownership, but the settlor now holds the legal title in a new capacity ie as trustee. There is therefore no need to consider any formalities for dealing with the legal interest but it will be necessary to consider whether there are any formalities for creating the new
1.1.3 Transfer on trust
The other way of creating a trust is a transfer on trust. This involves the settlor transferring legal title to a trustee, who then holds for a beneficiary. This is more complicated than a self-declaration because it involves changes in both legal and
equitable title. Therefore it is necessary to consider formalities both for creation of the equitable
interest and the transfer of the legal interest.
1.2 Formalities for declaration and constitution
It is important to understand when you need to consider the formalities rules for declaration of trusts, when you need to consider the rules for constitution of trusts and when you need to consider both.
1.2.1 Formalities for declaration of trusts
When we talk about formalities for declaration of trusts, we mean the formal requirements (if any) for creating a completely new trust. You must therefore consider the issue of formalities whenever a trust is being created (whether it is a self-declaration of trust or a transfer on trust). For completeness, this means that formalities should be considered if a sub-trust is being created although we do not focus on sub-trusts on this course.
1.2.2 Other property
If the property is not land, there are no separate formalities for creation of the equitable interest. This is clear from the case of Paul v Constance. No specific formalities are required for the declaration of a trust of property other than land, meaning there is no requirement to use a
particular method (such as writing) to create the equitable interest.
1.3 Formalities for constitution of trusts
When we talk about formalities for constitution, we mean the formal requirements for transferring
legal title to another person. This means that you need to consider the constitution rules when a legal owner intends to make either a gift or a transfer on trust. The constitution rules will always
be relevant here, but will differ depending on the type of property. For example, the method you must use to transfer legal title to land is very different to the method needed to transfer legal title to a chattel.
1.3 Formalities for constitution of trusts
The reason we don’t need to consider constitution when dealing with a self-declaration of trust is
because legal title is not moving. Self-declarations of trust are therefore automatically constituted.
You may question why we are focusing on gifts here at all, given that this module is concerned
with trusts. The reason is because there are circumstances in which equity will intervene and perfect an imperfect gift even though it has not been properly constituted. Sometimes this takes effect by way of a constructive trust. We consider these circumstances in detail later in this chapter.
1.4 A note on testamentary trusts
Although this chapter does not focus on testamentary trusts, it is worth briefly mentioning them because you will come across a lot of trusts created via will. The creation of a testamentary trust requires compliance with s 9 Wills Act 1837. This is not so much a specific formality requirement for the creation of a trust but rather a general requirement for any testamentary disposition. If the will does not comply with s 9, the will itself will be void, meaning that no gifts or trusts created in the will can take effect.
1.4 A note on testamentary trusts
As long as the formalities in s 9 Wills Act 1837 have been complied with, the will is valid and the legal title to all property in the deceased’s estate will vest in their personal representatives (known as either executors or administrators). They then have an obligation to give effect to any valid gifts or trusts in the will.
If the personal representatives are named as trustees, they will then hold the relevant property in
their capacity as trustee (once they have administered the estate and are ready to distribute property). If the will contains any gifts or trusts with a third-party trustee, the personal representatives have an obligation to transfer legal title to those people.
1.4 A note on testamentary trusts
You therefore do not need to worry about the formalities and constitution rules when analysing
the provisions of a validly executed will.
2 Formalities
2.1 Trusts of land
This section explores the formalities for declaration of a trust of land set out in s 53(1)(b) LPA 1925. Although it is generally possible for a settlor to declare a trust without complying with any specific formalities requirements (see eg Paul v Constance) there are specific rules applicable to the declaration of trusts of land.
Key case: Section 53(1)(b) LPA 1925
Section 53(1)(b) LPA 1925 provides that ‘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’.
s 53(1)(b) LPA 1925
We will now look in detail at the requirements of s 53(1)(b) LPA 1925 and considers the effect of failing to comply with those requirements
Manifested and proved
Section 53(1)(b) is an evidential requirement only. This means:
- The declaration and the writing need not be contemporaneous.
- The trust will be unenforceable unless and until s 53(1)(b) is satisfied.
Some writing
There is no prescribed form for the written evidence. All that is needed is something in writing which provides evidence of:
- The settlor’s intention to create the trust; and
- The terms of the trust.
Signed by some person who is able to declare such trust
Although the signature will usually be that of the settlor, it is arguable that the trustee (being the legal owner) can also provide the written evidence. This point is not settled and it is preferable to seek directions from the court in situations where the trustee considers doing so.
By will
Section 53(1)(b) expressly provides for the possibility that a trust of land is created by will. As long as the will is validly executed, ie complies with s 9 Wills Act 1837, this will be sufficient to satisfy s 53(1)(b).
2.1.1 Unenforceable trusts
As we have already seen, s 53(1)(b) is an evidential requirement. Non-compliance renders the trust
unenforceable rather than void. This is a crucial distinction: A trust exists from the moment it is declared but the beneficiary cannot enforce their rights unless and until s 53(1)(b) is satisfied. Once the trust becomes enforceable the beneficiaries can enforce their rights in respect of the
period between declaration and satisfaction of s 53(1)(b)
Example: Oral declaration subsequently evidenced by signed writing
Consider a life interest trust of land which is orally declared in January but evidenced six months
later, in June. The life tenant is entitled to the income produced by the land between January and June. Once the trust becomes enforceable, the life tenant can sue to enforce this interest. The trustee can also be sued for any other breaches of trust between January and June.
2.2 Exceptions to s 53(1)(b) LPA 1925
The formalities rules in s 53(1)(b) LPA only apply to the creation of express trusts. There is an exception in s 53(2) for resulting, constructive and statutory trusts. This means that there are cases where trusts of land can arise in the absence of written evidence.
2.2 Exceptions to s 53(1)(b) LPA 1925
Statutory trusts are not considered in this module. Resulting and constructive trusts are covered in
further detail in the chapter on ‘Resulting trusts’ but in order to understand the following discussion on failure of formalities, it is helpful to briefly consider what we mean by resulting and constructive trusts