1. INTRODUCTION TO FORMALITIES
Definition (Law Commission):
Formalities are “procedures which have to be followed in order to give legal
effect to certain agreements or transactions.”
Justifications for Formalities
1. Evidential — ensures there is reliable proof of what was agreed.
2. Cautionary — encourages parties to pause and consider the seriousness
of their actions.
3. Channelling — uses standard documents or methods to reduce
uncertainty.
2. TESTAMENTARY TRUSTS
2A. Wills Act 1837, Section 9 Requirements
1. In Writing & Signed
o Will must be written and signed by the testator (or someone in the
testator’s presence and by direction).
2. Testator’s Signature
o Must be intended to give effect to the will.
3. Attestation by Two Witnesses
o Two or more witnesses must sign (or acknowledge their signatures)
in the testator’s presence.
Additional Points
Temporary relaxation allows video-conference witnessing for wills
made on or after 31 Jan 2020 until 31 Jan 2024.
A valid will automatically covers the formalities for any trust declared
within it (i.e., a “testamentary trust”).
A will can be revoked or amended by the same level of formality.
Key Conclusion: Once a valid will is made (with these formalities), any trust
included in that will is properly formed.
, 3. INTER VIVOS TRUSTS
3A. Trusts of Personal Property
No special formalities are required to create a trust of personal
property.
Paul v Constance: Mr Constance’s statement “the money in the bank
account is as much yours as it is mine” was enough to create a trust
without writing.
3B. Trusts of Land — Law of Property Act 1925, s 53(1)(b)
1. The Basic Rule
o If you declare a trust over land (or an interest in land), you must
have signed writing to prove it.
o An oral trust of land is not automatically void,
but unenforceable unless signed writing is produced.
2. Case Example: Taylor v Taylor
o Father and son bought property together. The Land Registry TR1
form stated the property was held on trust for both.
o Father and son didn’t sign, but the seller did — and that
was enough to count as “signed writing” to prove the trust.
3. Resulting, Implied, or Constructive Trusts (s 53(2))
o These arise automatically by law (often to prevent unfairness)
and do not require writing.
o Example: Rochefoucauld v Boustead — Land was transferred under
an oral agreement that it was held on trust. The holder couldn’t
later deny the trust by pointing to “no writing.” Equity imposed a
constructive trust to stop fraud.
4. DISPOSITIONS OF EXISTING EQUITABLE INTERESTS (Law of
Property Act 1925, s 53(1)(c))
4A. General Rule
If you already have an equitable interest (e.g., you’re a trust beneficiary)
and want to transfer it to someone else, you must do so in writing.
An oral attempt to dispose of that interest is void.
Grey v IRC
1. Facts
o 18,000 shares were held on bare trust for Mr Hunter.
o Hunter instructed trustees to hold the shares for his six
grandchildren (3,000 each).
o Trustees later executed written declarations, confirming the
grandchildren’s interest.
2. Key Question
Definition (Law Commission):
Formalities are “procedures which have to be followed in order to give legal
effect to certain agreements or transactions.”
Justifications for Formalities
1. Evidential — ensures there is reliable proof of what was agreed.
2. Cautionary — encourages parties to pause and consider the seriousness
of their actions.
3. Channelling — uses standard documents or methods to reduce
uncertainty.
2. TESTAMENTARY TRUSTS
2A. Wills Act 1837, Section 9 Requirements
1. In Writing & Signed
o Will must be written and signed by the testator (or someone in the
testator’s presence and by direction).
2. Testator’s Signature
o Must be intended to give effect to the will.
3. Attestation by Two Witnesses
o Two or more witnesses must sign (or acknowledge their signatures)
in the testator’s presence.
Additional Points
Temporary relaxation allows video-conference witnessing for wills
made on or after 31 Jan 2020 until 31 Jan 2024.
A valid will automatically covers the formalities for any trust declared
within it (i.e., a “testamentary trust”).
A will can be revoked or amended by the same level of formality.
Key Conclusion: Once a valid will is made (with these formalities), any trust
included in that will is properly formed.
, 3. INTER VIVOS TRUSTS
3A. Trusts of Personal Property
No special formalities are required to create a trust of personal
property.
Paul v Constance: Mr Constance’s statement “the money in the bank
account is as much yours as it is mine” was enough to create a trust
without writing.
3B. Trusts of Land — Law of Property Act 1925, s 53(1)(b)
1. The Basic Rule
o If you declare a trust over land (or an interest in land), you must
have signed writing to prove it.
o An oral trust of land is not automatically void,
but unenforceable unless signed writing is produced.
2. Case Example: Taylor v Taylor
o Father and son bought property together. The Land Registry TR1
form stated the property was held on trust for both.
o Father and son didn’t sign, but the seller did — and that
was enough to count as “signed writing” to prove the trust.
3. Resulting, Implied, or Constructive Trusts (s 53(2))
o These arise automatically by law (often to prevent unfairness)
and do not require writing.
o Example: Rochefoucauld v Boustead — Land was transferred under
an oral agreement that it was held on trust. The holder couldn’t
later deny the trust by pointing to “no writing.” Equity imposed a
constructive trust to stop fraud.
4. DISPOSITIONS OF EXISTING EQUITABLE INTERESTS (Law of
Property Act 1925, s 53(1)(c))
4A. General Rule
If you already have an equitable interest (e.g., you’re a trust beneficiary)
and want to transfer it to someone else, you must do so in writing.
An oral attempt to dispose of that interest is void.
Grey v IRC
1. Facts
o 18,000 shares were held on bare trust for Mr Hunter.
o Hunter instructed trustees to hold the shares for his six
grandchildren (3,000 each).
o Trustees later executed written declarations, confirming the
grandchildren’s interest.
2. Key Question
