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Trusts | Formation

Valid Trusts: Overview

Revision Note | Degree

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  • three methods creating express trust:
    lifetime settlor declares himself trustee (T) of property (require: valid declaration of trust)
    lifetime settlor transfers property to Ts to hold on trust (require: valid declaration of trust & transfer of property to Ts - constitution)
    in will testator appoints Ts who will hold property on trust (require: valid declaration of trust in valid will)
  • three certainties must be satisfied to create valid trust

    Knight v Knight (1840) 3 Beav 148

    • certainty of intention: settlor's or testator's intent to trust
    • certainty of subject matter: trust property & respective interests of beneficiaries
    • certainty of objects: sufficient identification of beneficiaries

Certainty of intention

  • trust only exists if owner of property intended to create
  • settlor must have mental capacity to create trust
  • trust made by under 18 yr old voidable before or within reasonable time of person reaching 18
  • explicit use of word trust not necessary if words impose duty on person to hold property for benefit of another
  • A's wish or hope (precatory words) B will hold property for benefit of C
    not create trust, B takes property absolutely as beneficial owner
  • trusts create obligations

    Re Kayford Ltd [1975]1 WLR 279

    • distinction made between obligations (create trust) & requests (do not create trusts)

    Re Adams & Kensington Vestry (1884) 27 Ch D 394


    • testator left all property to his wife for her absolute use & in full confidence that she will do what is right as to the disposal... between my children


    • absolute gift or trust in favour of children?


    • wife took absolutely, no trust intended
    • court considers whole will to construe meaning of words

Trust or gift

  • difficulties arise trying to distinguish gifts & trusts
    • D wrote to his brother M, stating: as from today I am holding 4000 shares... for you subject to you being responsible for all tax consequences... from this declaration and letter
    • D later wished to withdraw, arguing letter was failed gift as he had not handed over share certificate
    • gift or intention to create a trust?
    • Court of Appeal: D declared himself trustee of 4000 shares for M
    • intention implied: use word holding & D continued to hold legal title & use word declaration

Without formal words

  • lenient approach where settlor not sought legal advice
    • C held bank account for himself & P, stating: the money is as much yours as mine
    • C & P paid joint bingo winnings into the account & withdrawals regarded as joint money
    • was there sufficient intention to create trust?
    • C held bank account on trust for P
    • intention satisfied: from C's words & conduct
    • intention to give someone beneficial (equitable) interest equated to declaration of trust
  • decision in Paul v Constance heavily criticised as many believe no intention to create trust conflict with Milroy v Lord
  • express trust exists: if trust constituted by title to trust property being vested in T
  • trust constituted by: declaration of settlor as T or transfer of property to T
  • if settlor declares himself T no issue constitution property title but may be issue whether been declaration of trust (intention to create trust not gift)
  • declaration & transfer cannot be combined
    • court will not construe failed gift as declaration by donor that he is holding item on trust for donee
    • confirmed in Jones v Lock (1865) 1 Ch App 25

Certainty of subject matter

  • must be clear definition of: trust property & beneficiaries

Certainty of trust property

  • certainty of property essential for trusts & valid gifts
  • trust property must be identified in declaration of trust
  • settlor's attempts to create trusts over an unquantified part of property will fail

    Palmer v Simmonds (1854) 2 Drew 221

    • subject matter: the bulk of my estate is uncertain
    • estate is certain but bulk is not
  • issue arise if settlor quantifies part but does not segregate it from the rest

    Re London Wine Company (Shippers) Ltd [1986] PCC 121

    • Ps paid for wine but left it stored with D
    • D became insolvent
    • Ps argued that D held wine on trust (to claim trust property ahead of other creditors)
    • was wine held on trust?
    • no trust as subject matter uncertain: individual Ps wine had not been separated from entire wine stock certainty
    • Privy Council approved in Re Goldcorp Exchange [1995] 1 AC 74

    MacJordan Construction v Brookmount Erostin [1991] BLR 1

    • if settlor does not segregate money, declared to be held on trust, the trust fails due to uncertainty of subject matter
  • prior to approval of Re London Wine in Re Goldcorp area of law was inconsistent
    • M owned 950 shares in private company
    • M purported to declare himself T of 50 of the shares for H
    • M did not indicate which 50 shares (by numbers or segregation)
    • M sold 950 shares & kept proceeds
    • H claimed proportion of proceeds based on trust
    • was there certainty of subject matter?
    • Court of Appeal: there was certainty of subject matter & valid trust
    • by analogy with wills: valid legacy if states 100 of my shares in X Co Ltd & so valid lifetime declaration
    • distinguished Re London Wine: earlier case considered chattels, present case declaration of trust where settlor retained legal title

    Re Harvard Securites [1998] BCC 567

    • correct way to distinguish Hunter v Moss (intangible property) & Re London Wine (tangible property - chattels)
  • if trust property uncertain: purported trust fails & as settlor not disposed of property remains in his beneficial ownership

Certainty of beneficial interest

  • general rule: settlor must define extent of each beneficiary's share
  • discretionary trust exception: settlor leaves to Ts, beneficiaries' shares regarded as certain if to be determined by Ts, court will intervene if Ts do not act
  • group of beneficiaries exception: if trust or gift made to group & settlor not specify proportion, equal share assumed
  • nature of beneficiaries interest must be clear: life or absolute or conditional

    Re Golay [1965] 2 All ER 660

    • testator left trust for benefit of A
    • A to receive such income as the trustees should consider to be reasonable
    • was this a discretionary trust?
    • fixed trust: reasonable income was effective determinant - objectively reasonable
  • certain beneficial interests: equal shares, capable of determination by settlor's objective formula or under discretionary trust
  • uncertain beneficial interests: often leads to resulting trust for settlor

Certainty of beneficiaries (objects)

  • trustees (Ts) are under an enforceable duty to deal with trust property as directed by the settlor
  • beneficiary principle: beneficiaries can enforce trust through court action to make Ts carry out duties

    Morice v Bishop of Durham (1804) 7 RR 232

    • Sir William Grant: There can be no trust, over the exercise of which this Court will not assume control, for an uncontrollable power of disposition would be ownership, and not trust... there must be somebody, in whose favour the court can decree performance
  • beneficiary principle requires certainty of who is beneficiaries
  • charitable trusts are main exception to rule & are enforced by Attorney General
  • settlor must identify beneficiaries (objects) clearly when declaring the trust: degree of certainty varies depending on nature of trust
  • if objects are uncertain: attempted trust uncertain, Ts hold trust property on resulting trust for settlor, if settlor died resulting trust for beneficiaries entitled to residuary estate under will (next of kin on intestacy)
  • normally named objects are sufficiently certain

    Re Jackson [1933] Ch 237


    • testatrix left legacy to my nephew, Arthur Murphy
    • she had three nephews called Arthur Murphy


    • was there sufficient certainty of object?


    • evidence accepted showing she had contact with one but not others & she intended to benefit him
  • gifts or trust for a class of objects may create problems of certainty

Fixed trusts

  • fixed trust: Ts hold trust property on trust for beneficiaries in shares specified by settlor

    IRC v Broadway Cottages [1955] Ch 20

    • complete list test: determining whether settlor's description of beneficiaries is sufficiently certain
  • complete list test requires comprehensive list of all beneficiaries or fixed trust fails
  • complete list test also applies to gifts of aggregate amount to be shared between donees in specified shares
  • conceptual uncertainty: if description of beneficiaries lacks sufficient criteria/precise meaning
  • difficulty tracing a beneficiary: not cause a trust to fail as possible if possible to compile complete list of known beneficiaries (Ts can apply to court for directions in relation to missing beneficiaries)

Gifts subject to a condition precedent

  • gift subject to a condition precedent: gifts of fixed, individual amounts to each person who falls within the description of objects (£1000 for each deserving teacher - rather than fixed: £10 000 divided between each deserving teacher)
  • less certainty in definition of beneficiaries may be required for gift subject to a condition precedent

    Re Barlow's Will Trusts [1979] 1 WLR 278

    • will gave each friend of testatrix an option to purchase one of her paintings at a low valuation
    • was such a gift valid?
    • gift valid : if possible to identify one or more persons that he or they undoubtedly qualify even though it may be difficult to say of others whether or not they qualify
    • definition of friend may vary: unlike fixed or discretionary trust not necessary to define friend for gifts subject to a condition precedent
    • persons within core definition of friend would receive option to buy painting
  • Re Barlow's Will Trusts can be criticised as it affects the court's powers to enforce & supervise trusts due to possible argument over definition of friend

Discretionary trusts

  • discretionary trust: Ts hold trust property on trust for such objects & in such shares as Ts decide
  • powers of appointment now relevant to discretionary trusts & certainty of objects
  • not a discretionary trust: I give £10000 to A with power to appoint such sums as he may from time to time think fit for my daughters B & C
    A is donee with power of appointment
    A is not a trustee, his powers are mere powers
    B & C are objects of the power
    A not under duty to exercise power & court cannot compel him to do so but court will intervene if A gives money to anyone other than B & C
  • discretionary trust: I give £10000 to A on trust for such of my daughters, B & C, and in such shares, as A should in his discretion think fit
    A under obligation to distribute trust fund to B & C
    court will intervene if A does not distribute fund
  • fiduciary power: a power of appointment often given to trustees
  • fiduciary power: I give £10000 to my trustees to on trust for such of my children as my trustees may appoint but in default of appointment for my partner, P
    fiduciary powers not have to be exercised & court cannot compel
    trustees of fiduciary powers do owe duties which do not apply to mere powers: to consider from time to time whether to exercise fiduciary power by surveying objects & deciding if appointment is appropriate
    trustees of fiduciary powers cannot appoint a person who is not an object
  • necessary degree of certainty of definition of objects on creation of power of appointment: donee of power can carry out duties & court can exercise functions it has
  • complete list of objects not necessary: donee not obliged to share between all objects & court does not need complete list of objects but must be able to establish non-objects
  • certainty of objects test for powers is given postulant test

    Re Gestetner Settlement [1953] Ch 672

    • given postulant test for powers: Can it be said with certainty whether any given individual (postulant) is or is not a member of the class?
    • yes: power is valid, no: power is void
    • test approved in Re Gulbenkian's Settlements Trusts [1970] AC 508
  • certainty of objects test for discretionary trusts was previously same as for fixed trusts (complete test list)
  • new models of large discretionary trusts have been developing (benefit trusts & pension trusts for employees & relatives ) which risked failing due to not being able to produce a comprehensive list of objects
  • case law developing assimilation of powers of appointment & discretionary trusts
    • B signed trust deed establishing MHS Trust for benefit of staff & former staff of company with 1300 employees
    • MHS provided trustees (Ts) should apply net income in making grants at their absolute discretion: to or for the benefit of any of the officers and employees or ex-officers or ex-employees of the company or to such relatives or dependants of any such persons in such amounts at such times and on such conditions (if any) as they think fit
    • whether complete list test justified or discretionary trusts were closer to powers of appointment & postulant test more appropriate?
    • discretionary trust: Ts shall apply net income because imposed duties on Ts to make grants, language mandatory
    • Lord Wilberforce: It is striking how narrow and in a sense artificial is the distinction, in cases such as the present, between trusts... and powers...
    • may be distinction in duties of Ts with fiduciary powers of appointment & Ts of discretionary trusts, in extent of survey Ts may be expected to make (wider & more systematic for discretionary trust)
    • similarities in duties imposed means reasonable to use same test (postulant)
    • if court required to execute discretionary trust in the manner best calculated to give effect to the settlor's or testator's intentions, court may:
      divide trust property equally between all objects
      appoint new Ts
      request representatives of objects to draw up scheme for distribution
      order Ts to distribute trust property on basis of appropriate scheme
      therefore, complete list test should be discarded for discretionary trusts
    • Ts not need complete list of every object to carry out duty to survey of objects or to select an object (survey of large class of objects may be by field or category, Ts make decision on priorities & select objects according to needs & qualifications)
    • linguistic or semantic uncertainty: makes objects uncertain & discretionary trust void (same as conceptual uncertainty)
    • difficulty of ascertaining the existence or whereabouts of members of the class: if description of objects conceptually certain, discretionary trust valid even if Ts cannot ascertain existence or whereabouts of members of class
    • case remitted to High Court to determine under new postulant test whether class of objects of MHS trust was certain (Re Baden (No. 2) [1973] Ch 9)
    • MHS provided trustees (Ts) should apply net income in making grants at their absolute discretion: to or for the benefit of any of the officers and employees or ex-officers or ex-employees of the company or to such relatives or dependants of any such persons in such amounts at such times and on such conditions (if any) as they think fit
    • was term relatives sufficiently certain?
    • Court of Appeal (majority): postulant test requires conceptual certainty, if description of objects conceptually certain not matter if evidential uncertainty means cannot determine if particular individual is in class of objects
    • Stamp LJ (minority): to satisfy postulant test it had to be possible to say of any individual that he definitely was or was not in class of objects, otherwise definition of objects was uncertain & trust failed
      MHS trust was valid by construing relatives as next of kin or closest blood relative
    • Sachs LJ (majority): relatives conceptually certain, individual provide evidence he & employee/former employee were descended from common ancestor (clear parameters) so trust not fail
      onus on individual to produce evidence to convince Ts & if unclear (evidential uncertainty) he would not receive part of trust fund
      evidential uncertainty not cause discretionary trust to fail
    • Megaw LJ (majority): postulant test satisfied: if as regards at least a substantial number of objects, it can be said with certainty that they fall within the trust
      existence of individuals known to qualify & don't knows immaterial
  • administrative unworkability: can invalidate discretionary trust which has certain objects
    • discretionary trust invalid: where the meaning of the words used is clear but the definition of beneficiaries is so hopelessly wide as not to form 'anything like a class' so that the trust is administratively unworkable
    • council was being abolished & created discretionary trust of £400 000 for any or some of inhabitants of West Yorkshire (approx. 2.5 million)
    • was discretionary trust valid?
    • trust invalid: size of class of objects rendered it administratively unworkable

    Re Hay's Settlement Trusts [1982] 1 WLR 202

    • administrative unworkability not cause failure of powers of appointment
  • capriciousness (irrationality) voids: discretionary trusts & powers of appointment

    Re Manisty's Settlement [1973] 2 All ER 1203

    • A power to benefit 'residents of greater London' is capricious because the terms of the power negative any sensible intention on the part of the settlor.... A capricious power negatives a sensible consideration by the trustees of the exercise of the power.

Commercial trusts

  • commercial transactions tend to be covered by contract law but parties may also create trusts


  • trusts can provide protection if a company goes into liquidation: generally if X is owed money by an insolvent company(Y), X only has a contractual claim as an ordinary unsecured creditor (except if X has taken a mortgage or charge)
  • creditors are paid in statutory order under Insolvency Act 1986 (ordinary unsecured creditor is low priority)
  • if X a beneficiary of trust held by Y, X has equitable proprietary interest & can recover money in full ahead of other creditors
  • usual rules determining whether trust exists are same for companies

    Re Kayford [1975] 1 All ER 604

    • mail order company anticipated it may become insolvent
    • company received pre-payment for goods from customers
    • company's accountants recommended paying money received into an Customers' Trust Deposit Account & director gave instructions to bank
    • bank paid money into dormant existing account without trust in name
    • company went into liquidation
    • was money in the account held on trust for customers?
    • money was held under trust
    • company shown intention to declare itself trustee by trying to follow accountant's advice
    • well settled that a trust can be created without using the words 'trust'
    • payment of customers' money into separate bank account: a useful (though by no means conclusive) indication of an intention to create a trust
    • different consideration may apply to trade creditors: should be more aware of risk of insolvency, major lenders can demand security of loans & can insure risks through organisations (Trade Indemnity)
    • trust money has to be kept separate & cannot be used for trustee's own purposes
  • companies tend to use trusts for customer's money if heading towards liquidation
    • s.214: company which knows or ought to know, there is no reasonable prospect of company avoiding insolvent liquidation, is required to take all possible steps to minimise the potential risk to the customers
      if not court can order errant director to contribute personally to insolvent company's assets
  • Department for Business, Innovation and Skills often disqualifies directors who take private customers' money in advance of delivery, if it is then lost on liquidation
  • uncertainty of subject matter: attempted trust will fail if property (money or goods) is not separated from property of same kind (Re London Wine Company (Shippers) Ltd [1986] PCC 121)
  • certainty of objects may also be an issue

    OT Computers v First National Tricity Finance [2004] 1 All ER (Comm) 320

    • OT set up two bank accounts:
      1. held on trust for its customers
      2. held on trust for urgent suppliers
    • on liquidation creditors sought to claim money in the accounts
    • were the trusts valid?
    • 1. trust valid & creditors could not claim money
    • 2. trust void because objects were uncertain: not possible to draw up complete list of every beneficiary of this fixed trust & money was part of assets to be shared among creditors
  • direction to keep money or goods separate & dedicated for particular purpose may give rise to trust in commercial insolvency situation
    • Q lent R company money to be used for sole purpose of paying dividends to shareholders
    • R went into liquidation which meant dividends could not be paid
    • Q wanted unused loan money back
    • was Q an ordinary unsecured creditor or beneficiary under a trust?
    • House of Lords: R held unused money on trust for Q
    • Q never intended loan money to be at free disposal of R, implicit that if money not utilised as directed should be returned to Q by way of trust
  • loans not usually trusts as intended money will become property of borrower (who can dispose as he wishes)
  • Quistclose principle may create exceptions
    • Y borrowed loan from T
    • contract stated: The loan moneys will be utilised solely for the acquisition of property on behalf of our client and for no other purposes
    • Y used money for other purposes
    • was there a trust?
    • trust: money solely for acquisition of property & not at free disposition of Y, if not used for purpose should be returned to T
  • direction by lender loan money should be kept in separate bank account until used for stated purpose indicates money not at free disposal of borrower
  • separate bank account may not always be required

    Re EVTR [1987] BCLC 646

    • C lent D £60 000: for sole purpose of buying new equipment
    • loan paid into general bank account
    • D became insolvent & other creditors claimed the loan money
    • was there a trust?
    • trust: money not spent on new equipment was to be returned to C
  • Quistclose principle not confined to loans
    • C resigned from job at P & part of severance package C was promised his company car (if he paid off money still owing on credit agreement)
    • C paid remaining £34 000 to P, who confirmed it would used to pay off car creditors
    • P went into liquidation before paying money to car creditors
    • was a trust created?
    • trust: C had given money for express purpose (pay off car creditors)
    • C entitled to money in full as beneficiary of trust


  • policy reasons for restricting settlor's from placing property in trust for excessive periods of time:
    market economy: allocate resources to most profitable users
    absolute owner: can deal with property how he wishes trustees (Ts) cannot
    property held on trust: restrictions on marketability
    money held on trust: Ts not free to choose any investment, money
    not circulating freely in economy
  • law tolerates trusts which last for acceptable length of time: subjects trusts to rules against perpetuity
  • 1st rule perpetuity: against remoteness of vesting which relates to trust for people
  • 2nd rule perpetuity: against inalienability (applies to non-charitable purpose trusts)
  • 3rd rule perpetuity: against excessive accumulation of income (trusts before 6 April 2010 - commencement date Perpetuities and Accumulations Act 2009)

Remoteness of vesting

  • rule applies only to trusts which create contingent interests
  • restricts duration of trusts: beneficiary's interest must vest (if vests at all) within perpetuity period, otherwise trust void
  • pre 6 April 2010 (including wills executed before even if testator died after):
    80yrs if specified as perpetuity period in trust instrument, if not
    a life in being (person connected with trust alive at date trust created) + 21 yrs
  • on or after 6 April 2010
    • s.7: 125 yrs
      if not clear when trust created whether vesting will occur within relevant perpetuity period can wait & see if vesting occurs (if does trust valid)
  • interest contingent:
    beneficiaries not in existence or not ascertained (trust for Y's children & Y not have children yet)
    size of beneficiaries' interest unascertained (trust for all grandchildren equally, more may be born) condition attached to interest not yet satisfied (trust for Y at 18 yrs, Y not 18 yet)
  • vesting occurs:
    when all beneficiaries are born & ascertained
    size of beneficiaries' interest are determined
    any condition attached to beneficiary's interest is satisfied
  • discretionary trusts: subject to rule against remoteness of vesting because objects have contingent interest (size of interest unascertained)
    • s.8: saving provision, if more beneficiaries may be born after expiry of perpetuity period, possible to exclude them from class

Express trusts

  • general rules for settlors & testators:
    clear intention to create a trust
    define subject matter of trust to required degree of certainty
    define beneficiaries or objects with required degree of certainty
    beneficiary principle: ensure trust confers tangible benefit on beneficiaries (or is charitable)
    contingent trust: vesting will occur within perpetuity period

Lifetime: settlor declares himself trustee

  • lifetime (inter vivos) settlor declares trustee of property: valid declaration of trust
  • trust immediately constituted as no transfer of property ownership required
  • oral declaration trust valid: personalty (shares), chattels or money
  • written declaration for trust required for land
    • s.53(1)(b): declaration must be written or oral & confirmed in writing
      all terms of declaration (Ts, beneficiaries, trust property, beneficiaries' interests, any special powers or duties of Ts) must be evidenced in writing
      must be signed by person able to declare trust (settlor possibly authorised agent)
  • settlor cannot change mind: once trust effectively declared

Lifetime: settlor transfers property to trustee

  • lifetime settlor transfers property to T to hold on trust: valid declaration of trust & transfer property to T (constitution)
  • declaration: must comply with usual rules including three certainties
  • if trust property land: must comply with s.53(1)(b) LPA 1925
  • constituting the trust: correct method for transferring type of property must be completed
  • if transfer not effected properly (incompletely constituted): Ts do not acquire title to property & trust void
  • maxim equity will not assist a volunteer applies (beneficiaries usually volunteer as no consideration provided)
  • incompletely constituted trust not saved by switching trust creation methods & making settlor trustee (by analogy with imperfect gifts not construed as declaration of trust Milroy v Lord (1862))
  • effective transfer:
    chattels (delivery or deed)
    transfer shares (settlor hands stock transfer form & share certificate to Ts who must register themselves at company)
    transfer land (deed of transfer (s.1 LP(MP) A 1989, s.52 LPA 1925) & registration of Ts at Land Registry)
  • circumstances when imperfect gifts are saved, also apply to incompletely constituted trusts:
    every effort test: settlor taken all necessary steps to transfer property but third party failed to take outstanding step (Milroy v Lord, Re Rose, Mascall v Mascall)
    Strong v Bird rule: Ts acquire title to property other than by direct transfer by settlor (settlor dies & Ts are personal representatives)
  • also if unconscionable for settlor to revoke trust
    • P signed trust deed creating trust for various charitable causes
    • P called trust his Foundation, named himself as a trustee & appointed other Ts to act with him
    • P declared orally that he gave all his wealth to the Foundation
    • P's wealth comprised of many shares & method to transfer shares not followed
    • was trust valid?
    • Privy Council: P cannot have intended to gift his wealth to Foundation & must have intended to transfer his wealth to Ts for charitable trusts declared in Foundation's trust deed
    • trust: required declaration of trust (oral statement) & correct transfer of property to Ts
    • P failed every effort test: not hand over stock transfer form & share certificates to Ts (who were not registered as shareholders at companies)
    • as P was a T trust property was vested in one of Ts & this was sufficient
  • decision in T Choithram International SA v Pagarani [2001] appears to conflict with Milroy v Lord which distinguishes three ways to benefit another: outright gift, declaration of self as T & transfer to Ts to hold on trust for another (where one fails court cannot substitute another method)
  • settlor cannot change mind: once trust effectively declared & constituted
  • if settlor transfers property but not effectively declare trust: Ts hold property on resulting trust for settlor


  • testator appoints Ts to hold property on trust: valid declaration of trust in will
  • testamentary trust: trust created in will, no effect until testator dies & until death testator can revoke
  • declaration & constitution effected by will itself
  • formalities for testamentary trusts set out in Wills Act 1837
    • s.9: written, signed by testator in joint presence of two witnesses & signed by two witnesses in presence of testator
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