Class notes

Full Lecture notes for the topic of Express Private Trusts

1 purchase

Course
Equity & Trusts (CL6331)

Institution
Cardiff University (CF)

• These lecture notes will: • Outline what express private trusts are • Explain what is meant by ‘the three certainties’ • Explore two of the three certainties – intention and subject matter (main focus)

[Show more]

Preview 3 out of 19 pages

View example

Uploaded on April 24, 2023
Number of pages 19
Written in 2022/2023
Type Class notes
Professor(s) --------
Contains All classes

express private trust
trust
equity
certainty
subject matter
objects
precatory words
discretionary trusts
powers of appointment
intention

Institution
Cardiff University (CF)
Education Unknown
Course
Equity & Trusts (CL6331)

$9.06

Add to cart

Add to wishlist

100% satisfaction guarantee
Immediately available after payment
Both online and in PDF
No strings attached

Lecture 1 – Certainty of Intention and Subject Matter
 This lecture will:
 Outline what express private trusts are
 Explain what is meant by ‘the three certainties’
 Explore two of the three certainties – intention and subject matter
(main focus)

Express Trust
-created intentionally by a settlor (inter vivos trusts) or a
testator/testatrix (testamentary trust) for a human beneficiary

Express private trusts. So these are trusts created intentionally for the benefit of a person or
a group of people.

 Rules for validity:
 Settlor must have capacity
 Must comply with the beneficiary principle
 Must adhere to the perpetuity rules (125 years – Perpetuities and
Accumulations Act 2009)
 Must comply with formalities where relevant – 1) inter vivos trust of
land to be signed and evidenced by writing; 2) the will containing any
testamentary trust must adhere with the formality requirements of s9
of the Wills Act 1937
 Also, the three certainties…

 Certainty of Intention
 Needed because express trusts are declared intentionally and ensures that
property is held subject to trust obligations only when that was the settlor’s
express intention.

How do we find it?
 Matter of construction of words in context – look to the substance

,  Did the settlor intend the trustee to be under an obligation to hold the
property for the benefit of another, and does the settlor intend for someone
else to obtain the beneficial interest in the property?
 Settlor does not need to understand the concept of a trust in order to create
one
---See Paul v Constance [1977] 1 WLR 527: ‘….we are dealing with simple people,
unaware of the subtleties of equity, but understanding very well indeed their own
domestic situation…’ (Scarman LJ, 530)

A trust can be created without the word ‘trust’…

“…it is well settled that a trust can be created without using the words “trust”… the
question is whether in substance a sufficient intention to create a trust has been
manifested.” Re Kayford [1975] 1 WLR 279, 282 (Megarry J)

…and the use of the word ‘trust’ does not mean that a trust has been created

“…merely by using the word trust, even though Mr Singha had a law degree, did not
mean that Mr Singha intended to use the word trust in a legal sense. In the context
of the relationship between Mr Heer and Mr Singha, all the word trust meant… was
that the properties would not be dealt with adversely to the interests of Mr Heer…”
Singha v Heer [2016] EWHC Civ 424, [28] (Arden LJ)

Interpreting intention objectively:

-Where there is ambiguity – the court will make sense of it
(see Re Gulbenkian [1970] AC 508, 522)

Courts usually interpret intention objectively – would a reasonable person
conclude that the settlor intended to create a trust?

“A settlor must, of course, possess the necessary intention to create a trust, but his
subjective intentions are irrelevant. If he enters into arrangements which have the

, effect of creating a trust, it is not necessary that he should appreciate that they do
so; it is sufficient that he intends to enter into them.” (Twinsectra v Yardley [2002]
UKHL 12, [71] (Lord Millett))

See Rowe v Prance [1999] 2 FLR 787:

‘…the regular use of ‘our’ in relation to the boat, coupled with the explanation why
the boat was not registered in joint names, establishes that the boat was held by Mr
Prance on trust for himself and Mrs Rowe equally. It is pointed out that there is no
need for writing in the case of an item of personal property such as a boat to create
an express trust.’ (Nicholas Warren QC, 794)

IMPORTANT SIDE NOTE - SHAM TRUSTS

On an objective assessment, there is an intention to create a trust, but the
‘settlor’ does not intend to depart with the beneficial interest in the property
For sham trusts subjective intention is relevant:
 Is there an intention to create a false impression of a trust? (Shalson v
Russo [2003] EWHC 1637 (Ch))
 Trust may be a sham even if no fraudulent intention (Midland Bank v
Wyatt [1995] 1 FLR 697)
Sham trusts are void and unenforceable

Absence of intention:
If there is no intention to create a trust, there is no trust

Person with legal title to the property keeps the property
 If there’s been a self-declaration of trust – the settlor keeps the property
 If the ‘trust’ was created by transfer, and the legal title has passed to the
‘trustee’, then the ‘trustee’ keeps the property

Certainty of Subject-Matter

What is it and why do we need it?
Subject-matter = reference to the property that is to be held on trust
 This can be any type of property, including real property (land) and personal
property (chattels), be that tangible (property you can touch) or intangible
(property you cannot touch)
 Must have certainty of subject-matter so the trustee (or the court) can
perform the trust

The benefits of buying summaries with Stuvia:

Guaranteed quality through customer reviews

Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.

Quick and easy check-out

You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.

Focus on what matters

Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!

Frequently asked questions

What do I get when I buy this document?

You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.

Satisfaction guarantee: how does it work?

Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.

Who am I buying these notes from?

Stuvia is a marketplace, so you are not buying this document from us, but from seller alicewalsh. Stuvia facilitates payment to the seller.

Will I be stuck with a subscription?

No, you only buy these notes for $9.06. You're not tied to anything after your purchase.

Can Stuvia be trusted?

4.6 stars on Google & Trustpilot (+1000 reviews)

69052 documents were sold in the last 30 days

Founded in 2010, the go-to place to buy study notes for 15 years now

Start selling