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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.