Declaring express trust

Question 1

Building blocks

Answer 1

1) 3 certainties - intention, subject matter, object
2) Beneficiary principle
3) Perpetuities
4) Formalities

Question 2

Certainty of intention

Answer 2

Must be clear that the person making the declaration intended to create a trust as opposed to a gift. Must use words that impose a duty on someone to act as a trustee and hold property for someone else

Question 3

No certainty of intention

Answer 3

If someone transfers property to another using precatory wording then it is likely they have made a gift

Question 4

Certainty of subject matter

Answer 4

Must be clear what property is being held on trust (property must be identifiable) and also what the individual interests of beneficiaries are (must be clear how that property will be shared - type of interest and share)

Question 5

No certainty of subject matter - No certainty of trust property

Answer 5

No trust is created

Question 6

No certainty of subject matter - No certainty of beneficial interest

Answer 6

Gap in beneficial ownership so it is held on resulting trust back to the settlor

Question 7

Certainty of objects

Answer 7

Must be clear who the beneficiaries are. This will be different for fixed and discretionary trusts

Question 8

No certainty of objects

Answer 8

If it doesn’t have certainty of objects then it will not have effect

Question 9

The beneficiary principle

Answer 9

Trusts must have ascertainable human beneficiaries. a trust for a purpose as opposed to a trust for a human beneficiary has no one to enforce the obligation.

Question 10

The rules against perpetuity

Answer 10

Law will only tolerate trusts that last for an acceptable period - can’t be for too long.
Rule against remoteness of vesting - the beneficial interests under the trust must vest within the relevant perpetuity period. Trusts after 2010 this is 125 years

Question 11

Formalities for a lifetime express trust

Answer 11

Have to distinguish trusts of personalty (money) and trusts of land

Question 12

Formalities for a lifetime express trust - Personalty

Answer 12

No formalities needed. Declaration can be oral

Question 13

Formalities for a lifetime express trust - Land

Answer 13

Has to be evidenced in writing and signed by settlor (person declaring trust). This can be in an email - putting their name at the bottom is signing their name