Trust 5 Formalities & Constitution

Question 1

What happens with a discretionary trust and a power of appointment where the class of objects is too wide?

Answer 1

Discretionary = void
Power = remains valid

Question 2

What formalities are there to create an express trust of land?

Answer 2

Manifested and proved
- By some writing (evidence of intention and its terms)
- Signed by some person able to declare such trust (or by will)

Question 3

What if there is no written evidence?

Answer 3

The trust is unenforceable NOT void. This means that if, later, the transfer is evidenced in writing, the beneficiaries will be able to enforce their rights going back to the original date of creation of the trust.

Question 4

What are the cases on oral agreements of land?

Answer 4

• A sold to B on the oral agreement that B would hold it on trust - held constructive trust created as would otherwise be fraud.

Question 5

What formalities are there to create an express trust (not of land)?

Answer 5

No real formalities, just must satisfy requirements e.g. certainties

Question 6

What are consequences of not complying with formalities to create a trust in land?

Answer 6

Renders the trust unenforceable (not void): beneficiary can’t enforce rights until requirements are satisfied & when they are, can enforce rights in respect of period before

Question 7

What happens if formalities to create a trust are never satisfied?

Answer 7

• Trust remains unenforceable subject to anything rendering it unconscionable for settlor to deny the trust
• For transfer on trust, if settlor also makes no attempt to constitute, will be unenforceable and void for lack of constitution subject to unconscionability