Formalities /\ Constitution \/ (Inter vivos trusts (Constitution by…
Law of Property Act 1925
Any trust of land must be manifested and proved by some writing which is signed by the
Failure to comply means trust is
unenforceable but not void
. If a trust was void, it would mean the trustee could use the statute as an instrument of fraud, which equity will not allow. (
To enforce a trust under s.53 LPA, intended beneficiary must show there was an intended trust. Courts will not allow enforcement of a trust which fails to comply with s.53(1)(b) where there is simply no evidence of the trust, or where evidence shows the trust was pursuant to an unlawful act per
Random House v Allason
If trust enforced by court, is it express or implied?
held that parol evidence leads to the court giving effect to an express trust
held that the courts instead imply a constructive trust on the grounds of unconscionable behaviour of the trustee.
Law of Property (Miscellaneous Provisions) Act 1989
Contracts for sale of land to be made by signed writing
No formalities for
trusts that are of personal property (
Paul v Constance)
Testamentary trusts constituted upon death when property vested in executors.
Declaration of self as trustee or transfer to trustees
Where there is failure to effectively declare the settlor as a trustee or transfer the property to the trustees, the trust is incompletely constituted.
Equity will not perfect an imperfect gift
Equity will not assist a volunteer thus intended beneficiary cannot enforce a promise to create a trust
Constitution by declaration
Richards v Delbridge
No need for particular words provided there's evidence (from words or conduct) of intention to create trust
Constitution by transfer - title must be transferred to the trustee
Land - See LPA above
Deed - see s.1 deeds and their execution
Delivery - Intention to pass title immediately and act of delivery.