CREATION OF TRUST - express Flashcards
the express trust can be treated in 2 ways
- inter vivos
- after deatgh
how is a exoress trust made inter vivos
- by tranfer of legal title to the trustees
- by self declaration - three certainties
how is a express trust made after detah
by will
what r the three certainties and what section
s15 trusts act
1. intention
2. property
3. beneficiarys
s25 pla
if trust prop is land it must b in wrirting
s11 wills act
if the trsut is bein created by will, it must be in worting and be witnessed
certairty of intention
trust intention can be evidenced by
1. trust deed
2. by words and conduct
whats an important thing to remeber about trust certity of inetntion
an expres trsut may be created even though the parties do not call it a trust, and even though they do not precisely understand what a trust is
paul v constance
c left prop to first wife he seperated from, de facto partner, p claimed her and c shared a bank acc
words and conduct here clealry indictaed an INTENTION TO C to hold half the account on trsut, c had repeatedly said this is as mcuh my money as yours
c
jones v lock
father places cheque in babys hand, i give this to baby, but retains possession, failed to include in will and died
a failed gift cannot be inferred to be a trust as the intention was that of making a gift not a trust
certainty of property
the subject matter of the trust must be sifficuiently certian, ant be vague or ambigupis waht the trsut property is
certianty of objects/beneficiaries
- who is to benefit from trust prop
AND - how are they to benefit
types of beneficial intersts
- fixed
- vested
- contingent
- joint
- discretionary
fixed interest
settlor placed house on trust for beneficiary
vested interest
settlor grants parter a life interest in house and children remainder interest
- can be in possession, capitlal
- immediate or postponed benefits
contingent interest
settlor grants children living at the time of his detah an interest in the house
- beneficiary to meet a condiction before interest vests
joint interests
settlor divides interest between children
- survior ship rule
- tenancy in common
discretionary interest
settlor leave discretion to trustee to determine childrens iinterest
- chilren have mere hope they wil receive
if there is uncertiaty as to who owns what
the remiander will revert back to the settlor creating a resutling trust
resulting trust
if there is uncertainty to who owns what, the property will revert back to the settlor creats a resulting trust
