What is a trust and who are the key parties involved?
A trust is a fiduciary relationship in which a trustee holds legal title to specific property under a duty to manage, invest, safeguard, and administer the trust assets and income for the benefit of designated beneficiaries, who hold equitable title. The person who creates the trust is the settlor.
What are the two main categories of trusts and their sub-types?
The two main categories are:
* Express Trusts
* Implied Trusts
Sub-types of Express Trusts:
* Inter Vivos Trust
* Testamentary Trust
* Private Trusts
* Charitable Trusts
Sub-types of Implied Trusts:
* Resulting Trust
* Constructive Trust
What are the ‘three certainties’ required for a valid express private trust?
To be valid, an express private trust must be certain as to:
* Intention
* Subject Matter
* Objects
Explain the requirements for Certainty of Intention.
The settlor must manifest the intention to create a trust whilst owning the property, and the intention must be that the trust takes effect immediately. The language must be mandatory.
What are ‘precatory words’ and what happens if this certainty fails?
Precatory words are phrases like ‘desire’, ‘wish’, ‘in hopes that’ which are usually insufficient to create a trust. If certainty fails, the property passes as an outright gift to the person who would have been the trustee.
Explain the requirements for Certainty of Subject Matter.
The trust property must be clearly defined, and vague phrases are not sufficiently certain. The property must presently exist; a mere expectancy cannot be placed in a trust.
What happens if Certainty of Subject Matter fails?
The trust is void, and the property reverts to the settlor or their estate via a resulting trust.
Explain the requirements for Certainty of Objects in a fixed trust.
In a fixed trust, beneficiaries’ interests are fixed, and they must be identifiable so the trustee can create a complete list. Beneficiaries can be named or defined by a concept, which must be capable of objective determination.
Explain the requirements for Certainty of Objects in a discretionary trust.
In a discretionary trust, it must be certain whether any given person is or is not a member of the class. A complete list is not required, but the class cannot be administratively unworkable.
What happens if any trust fails for uncertainty of objects?
A resulting trust is presumed in favour of the settlor or their estate.
How is a trust ‘constituted’?
A trust is constituted when legal title to the trust property is transferred to the trustee. This can be done by:
* Declaration of Self as Trustee
* Transfer to a Third-Party Trustee
What are the specific formalities for transferring different types of property to constitute a trust?
Formalities vary by property type:
* Land: Transfer deed and registration at HM Land Registry
* Shares: Signed stock transfer form and registration with the company
* Chattels: Intention to transfer and physical delivery
* Bank Account: Signed, written notice of the transfer to the bank
What happens if a settlor intends to create a trust by transferring property to a trustee but fails to complete the transfer correctly?
Generally, if the transfer is not completed, the trust fails. However, exceptions include:
* The ‘Every Effort’ Test
* The Rule in Strong v Bird
* Proprietary Estoppel
* Donatio Mortis Causa
What is a testamentary trust?
A testamentary trust is set out in a will and takes effect upon the settlor’s death.
Explain Fully Secret and Half-Secret trusts.
Fully Secret Trust: The will makes an outright gift with no mention of the trust. Half-Secret Trust: The will indicates a trust exists but does not name the beneficiary.
Distinguish between vested, contingent, limited, and absolute interests in a trust.
Types of interests:
* Vested Interest: No conditions attached
* Contingent Interest: Conditions must be fulfilled
* Limited Interest: Right to receive only income
* Absolute Interest: Right to both income and capital
Explain the rule in Saunders v Vautier.
The rule allows beneficiaries to terminate the trust and demand the transfer of the trust property if:
* All beneficiaries are adults and of sound mind
* They act unanimously
* They are absolutely entitled to the entire equitable interest
When does a Resulting Trust arise?
A resulting trust is implied by law based on the presumed intention of the settlor and typically arises in:
* Failed Express Trust or Surplus Property
* Apparent Gift / Purchase Money
What can rebut the presumption of a resulting trust?
The presumption can be rebutted by evidence of no trust intention or the presumption of advancement.
What is the ‘presumption of advancement’?
The presumption that a gift was intended, rebutting a resulting trust, applies if the person providing the money is:
* The recipient’s husband or fiancé
* The recipient’s father
* Someone standing in loco parentis
When does a Common Intention Constructive Trust arise?
A common intention constructive trust arises if a claimant can establish:
* A common intention that the claimant should have an equitable interest
* The claimant relied on this intention to their detriment
What is required for Express Common Intention in property ownership?
Proof of actual discussions between the parties about ownership of the land
How can Inferred Common Intention be established?
It can be inferred from conduct, such as a direct contribution to the purchase price or payment of household expenses
How is the claimant’s share determined in property ownership disputes?
By what the parties agreed or, failing that, by what is fair considering the whole course of dealings between them