Creation of Trust

Question 1

How is an express trust created?

Answer 1

Declaration
- delivery shows intention to create trust

Transfer
- truster must divest title

Question 2

Creation requirements in:

• inter vivos
• mortis causa

Answer 2

inter vivos

• usually form of trust deed
• signed by truster
• deliver

mortis causa

• must be in writing
• ROWA 1995 s1(2)(c) - testament

Question 3

What must be included in declaration?

Answer 3

• trust property (distinguishable from personal patrimony)
• trust purposes
• beneficiaries

Question 4

When is writing requried?

Answer 4

• truster-as-trustee
• trust relating to interest in land
• mortis causa

Question 5

What is the transfer requirement?

Answer 5

For a trust to be in existence, ownership must be transferred effectively from truster to trustee.

• inter vivos: method depends on type of property
• mortis causa: personal right to deceased’s property vests in executors by confirmation, admin purposes

Question 6

Transfer requirements for truster-as-trustee trusts.

Answer 6

• cannot be technical delivery of property

Sole trustee must:

• intimation
• declaration
• agent is sufficient
• writing ROWA s2(1)(a)(iii)

Question 7

Time of construction. (conventional view vs alternative)

Answer 7

Conventional:
- declaration + property transferred to trustee

Alternative:

• on delivery of trust deed (divestiture is not essential)
• intimation is point of no return
• this position allows trustee to enforce transfer of property