Express Private Trusts Notes

Express Private Trusts: Intentionally created by a settlor or testator/testatrix.

Types of Trusts:

Inter Vivos Trust: Created while the settlor is alive.

• Self-declaration of Trust: Settlor as trustee.
• Trust by Transfer: Another person as trustee.

Testamentary Trust: Created through a will, effective after death.

Capacity Requirements:

Must have mental capacity to create a trust.

• Child settlements voidable post-age of 18 (Edwards v Carter).
• Trust by mentally incapacitated persons is void (Re Beaney).

Formalities for Inter Vivos Trusts:

No formal requirements for personal property (Paul v Constance).

Must be in writing and signed for land trusts (Law of Property Act 1925).

Formalities for Testamentary Trusts:

Must comply with Wills Act 1837; invalid if not.

Property distribution follows intestacy rules if invalid.

Perpetuity Rules: Establish maximum duration of trusts.

Statutory period of 125 years (Perpetuities and Accumulations Act 2009).

Beneficiary Principle:

Must have a living human beneficiary (Morice v Bishop of Durham).

Exceptions: Charitable and non-charitable purpose trusts.

The Three Certainties (Knight v Knight):

Certainty of Intention: Must show intent to create a trust.

Certainty of Subject Matter: Clearly define property involved.

Certainty of Objects: Identifies who benefits from the trust.

Certainty of Intention:

Derived from settlor's intent; does not require legal terms.

Avoid precatory words that suggest no obligation (e.g., 'hope', 'wish').

Interpreting Intention:

Courts assess reasonable person’s understanding of intent (Re Gulbenkian).

Sham Trusts:

Trusts created to create an illusion without relinquishing beneficial interest.

Key Takeaway:

Trust validity hinges on intention and compliance with formal and substantive requirements.