Express Private Trusts Study Notes

Express Private Trusts Overview

• Focus of assessment: Problem question
• Guidance: Videos and tutorials available for preparation

Aims of the Session

• Explore express private trusts
• Requirements for creating valid express trusts
• Introduction to 'the three certainties'

Creating Express Private Trusts

• Defined as trusts created intentionally by a settlor/testator
• Types:
• Inter Vivos Trusts: Created while the settlor is alive
  • Self-declaration or transfer to a trustee
• Testamentary Trusts: Created via a will after death

Capacity Requirements

• Settlor must have capacity to create a trust
• Trusts created by children or mentally incapacitated persons can be void or voidable
• Mental Capacity Act 2005 allows court interventions

Formalities for Trusts

• Inter Vivos Trusts:
• No formal requirements for personal property
• Written and signed documentation required for land trusts
• Testamentary Trusts:
• Must comply with Wills Act 1837
• Invalid if formalities are not met

Perpetuity Rules

• Govern trust duration; aim to prevent indefinite trusts
• Statutory period of 125 years affecting post-2010 trusts

Beneficiary Principle

• A living beneficiary must exist for the trust to be valid
• Exceptions exist for charitable and non-charitable purpose trusts

The Three Certainties

• Essential for valid trusts:
• Certainty of Intention: Settlor's intention to create a trust
• Certainty of Subject Matter: Specific property designated for the trust
• Certainty of Objects: Identifiable beneficiaries

Certainty of Intention

• Needs to be evident through context, not necessarily with the word “trust”
• Precatory words may indicate lack of intention

Absence of Intention

• No intention leads to no valid trust; legal title stays with the initial holder

Summary Points

• Trusts are intentionally created by settlors/testators
• Key focus is on three certainties, particularly certainty of intention
• Precatory language signals potential issues in identifying intent
• No intention means no enforceable trust

Next Steps

• Upcoming lectures and tutorials will continue exploration of express private trusts
• Engage with resources, ask questions as needed.