Express Trusts Flashcards
How to create a trust
Declare yourself a trustee or transfer property to trustee on trust
What kind of property can be trust property
Anything capable of being owned can be trust property
When is a trust constituted and enforceable
Once property is transferred to trustee
Can a settlor create a trust if they only have an equitable interest
Yes can still assign it so interest is held on trust not property
What is T becomes bankrupt
B can claim trust property in advance of creditors
Who enforces public trusts
Att-Gen
How long is Perpetuity rule
125 years
What happens when perpetuity rule breached
Trust instrument must provide for it to vest within the period or trust becomes void
Rule against accumulations
No long Applies
For trusts created pre 2010 the trust cannot be accumulated for more than 21 years or the minority of a person in being
Bona fide purchaser for value without notice
Takes free of equitable interests
Equity’s darling.
Bona fide= good faith
Unless purchaser has notice or ought reasonably to have acquired notice of the equitable interest
How to assign an equitable interest
Signed writing
Declare you hold it for another (sub trust)
Or
Declare T holds it for another
Must be whole of interest not part of it
Formalities for a trust of personal property
No formalities required just need capacity and intention to create a trust
Formalities for trust in a will
Wills Acts s9 - writing, signed witnessed
Trust for land formalities
Writing and signed
Doesn’t need to be a deed
Also transfer legal title under LPA s52
Formalities for trust of copy write
Writing
Formalities for transfer of shares
Form of transfer and stock transfer form
Knight v Knight 3 certainties
subject, object and intention
Certainty of intention
Intention to create a trust must be clear
consider all circumstances, whole trust and can imply from behaviour
imperative words - trust
hope / wish - not a trust, a gift.
What if there is no certainty of intention
Take absolutely as gift
Certainty of subject matter
Property must be easily identifiable
cannot be part of bulk unless shares.
evidential uncertainty won’t cause it to fail (cannot locate it)
What if there is no certainty of subject matter
trust is void
certainty of objects
clear who are the Bs. Fixed trusts - class ascertainability test (IRC v Broadway) - T must be able to draw up a complete list of Bs. Discretionary trusts - individual ascertainability test (Mcphail v Doulton) - T must be able to say if any one person falls within the class. Need conceptual certainty and administrative workability or will fail.
Conceptual certainty
clearly defined
administrative workability
not too wide a class so that it would be practically impossible to establish Bs.