Creation of trusts of land Flashcards
What is required for the declaration of a Trust of Land as per s53(1)(b) LPA 1925?
The declaration must be:
- manifested and proved
- by some such writing
- and signed by soe person who is able to declare such a trust
- or by a will
Does the declaration and writing for a Trust of Land need to be contemporaneous?
No, they need not be contemporaneous.
Evidential requirement only
What is the requirement for the written evidence when creating a Trust of Land?
It must show intention to create a trust and the terms
There is no prescribed form for this written evidence.
Who must sign the declaration of a Trust of Land?
It must be signed by a person able to declare such trust, usually the settlor, but could be the trustee.
Can a Trust of Land be created by will?
Yes, as long as the will complies with s9 Wills Act 1837.
What happens if there is non-compliance with trust of land formalities?
The trust becomes unenforceable rather than void.
What is the consequence for the beneficiary if a trust is unenforceable?
The beneficiary cannot enforce their rights.
What does a void trust signify?
A void trust does not come into existence at all.
What can render it unconscionable to deny the interest of the beneficiary?
Circumstances such as proprietary estoppel or the imposition of a constructive trust.
What opportunity does non-compliance with formalities give to the settlor?
It gives the settlor a chance to change their mind about parting with beneficial ownership.
What occurs if a settlor changes their mind but does not constitute the trust?
The trust will be unenforceable and void for lack of constitution.
What should a trustee do if a settlor transfers legal title but does not comply with s 53(1)(b)?
It would be prudent for the trustee to seek directions from the court as to their obligations.
