Express trust: FORMALITIES
Self-declaration – declare yourself as holding on trust for another
- Must scrutinise whether it is subtrust or a disposition (see dispositions)
- Always inter vivos
Trust by transfer – declare someone else trustee
- Can be inter vivos or testamentary
Inter vivos formalities
Personal property
- No formalities, can be done orally.
Land
- Law of Property Act 1925 s53(1)(b) – must be in
writing
- Result of non-compliance not stated in act but
generally considered to mean trust is
unenforceable but not wholly void – Youdan
Exceptions
- Cannot rely non-compliance with writing requirement to show the
trust is unenforceable and claim the land transferred to you for
yourself – ‘equity will not allow a statute to be used as an instrument
for fraud’. Rochefoucauld.
Testamentary formalities
- Wills Act 1837 s9 – must be written and signed by testator in presence of two
witnesses
- Any changes must also be written and signed
- Any provision allowing will to be altered without adhering to
formalities is void (Re Edwards)
Exceptions
- Fully secret trust
- Half secret trust
- Donatio mortis causa
Self-declaration – declare yourself as holding on trust for another
- Must scrutinise whether it is subtrust or a disposition (see dispositions)
- Always inter vivos
Trust by transfer – declare someone else trustee
- Can be inter vivos or testamentary
Inter vivos formalities
Personal property
- No formalities, can be done orally.
Land
- Law of Property Act 1925 s53(1)(b) – must be in
writing
- Result of non-compliance not stated in act but
generally considered to mean trust is
unenforceable but not wholly void – Youdan
Exceptions
- Cannot rely non-compliance with writing requirement to show the
trust is unenforceable and claim the land transferred to you for
yourself – ‘equity will not allow a statute to be used as an instrument
for fraud’. Rochefoucauld.
Testamentary formalities
- Wills Act 1837 s9 – must be written and signed by testator in presence of two
witnesses
- Any changes must also be written and signed
- Any provision allowing will to be altered without adhering to
formalities is void (Re Edwards)
Exceptions
- Fully secret trust
- Half secret trust
- Donatio mortis causa
