Fixed Trusts - Formalities Flashcards
What does s 53(1)(b) LPA 1925 require for a declaration of trust of land?
A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.
What is the effect of failing to comply with s 53(1)(b) LPA 1925?
Non-compliance renders the trust unenforceable rather than void. The trust exists but the beneficiary cannot enforce their rights unless and until s 53(1)(b) is satisfied.
What does ‘manifested and proved’ mean in the context of s 53(1)(b)?
‘Manifested and proved’ is an evidential requirement only. The declaration and the writing need not be contemporaneous, and the trust will be unenforceable unless s 53(1)(b) is satisfied.
What is required for ‘some writing’ under s 53(1)(b)?
There is no prescribed form for the written evidence; it must provide evidence of the settlor’s intention to create the trust and the terms of the trust.
Who must sign the writing under s 53(1)(b)?
The writing must be signed by some person who is able to declare such trust, usually the settlor, but potentially the trustee as well.
Can a trust of land be created by will under s 53(1)(b)?
Yes, a trust of land can be created by will as long as the will is validly executed.
What happens if the formalities of s 53(1)(b) are never satisfied?
The trust will remain unenforceable, giving the settlor a chance to change their mind about parting with beneficial ownership.
What is the difference between an unenforceable trust and a void trust?
An unenforceable trust exists but cannot be enforced until formalities are satisfied, while a void trust does not come into existence at all.
What is constitution in the context of trusts?
Constitution refers to the transfer of legal title from one party to another, necessary for a trust to be valid.
How is a testamentary trust constituted?
A testamentary trust is constituted via the will after the death of the testator when legal title is transferred by personal representatives.
What is required for transferring legal title of registered land?
Transfers must be made by deed under s 52(1) LPA 1925 and registered with the Land Registry under s 27 LRA 2002.
What is the effect of constitution on the settlor’s rights?
Once a trust is constituted, the settlor ceases to have any beneficial or legal interest in the trust property.
What happens if trust property is not vested in the trustees?
The trust is incompletely constituted and therefore void.
What is the rule established in Milroy v Lord?
Equity will not assist a volunteer by perfecting an imperfect gift or treating a failed gift as a self-declaration of trust.
What is the Re Rose principle?
Equity may regard the transfer of the equitable interest in property as complete if the transferor has done everything within their power to effect the transfer.
What was the outcome of Re Rose?
The Court of Appeal held that the transfers were effective in equity when the correct transfer documentation was delivered to the company registrar.
What is the significance of Mascall v Mascall?
The Re Rose principle was applied to the gift of registered land, establishing that equity can recognize a transfer even if legal title has not yet passed.
