Trusts 6 Creation of Private Express Trusts

Section 53(1)(b) LPA 1925

“A declaration of trust respecting any land or any interest therein, must be manifested and proved by some writing, by some person who is able to declare such trust or by his will”

“Manifested and Proved”

Declaration and the writing need not be contemporaneous

“some writing”

No prescribed form for the written evidence, it must only provide evidence of settlor’s intention and the terms of the trust

“signed by some person who is able to declare such trust”

Usually the settlor, it may be possible for a trustee to sign but better to ask the court for direction

“by will”

Will must be validly executed in accordance with s9 Wills Act 1837

Non-Compliance with s53(1)(b)

Renders the trust unenforceable, but not void. The trust may become enforceable later if the requirements are met and beneficiaries can enforce their rights from the interim period

What if the formalities of s53(1)(b) are never satisfied?

Generally the trust will not become enforceable, a settlor may simply choose to never constitute the trust