Declaration of a Trust

• What is an express trust?

  An express trust is created with the express intention of the settlor.
• What is an inter vivos trust?

  An inter vivos trust is created during the settlor's lifetime.
• How can an inter vivos trust be created?

  By declaring oneself trustee of property they own or transferring property to one or more trustees.
• What is a testamentary trust?

  A testamentary trust is created by a will.
• What is a private trust?

  A private trust benefits ascertainable persons.
• What is a fixed trust?

  A fixed trust has defined interests for the beneficiaries.
• What is a discretionary trust?

  A discretionary trust gives trustees discretion on how to distribute the trust assets.
• What is a purpose trust?

  A purpose trust is set up for a purpose rather than for people.
• What is a charitable trust?

  A charitable trust is a purpose trust that benefits charity for an indefinite class of people.
• What is a bare trust?

  A bare trust allows the beneficiary to demand legal title to the trust property.
• What are implied trusts?

  Implied trusts are presumed to exist to ensure an equitable result, even if the settlor did not express a desire to create one.
• What is a resulting trust?

  A resulting trust arises when an interest under an express trust fails or when a person makes a voluntary transfer in the name of another.
• What is a constructive trust?

  A constructive trust is imposed by a court to prevent unjust enrichment due to wrongful conduct.
• What are the three certainties required for express private trusts?

  • Certainty of intention
  • Certainty of subject matter
  • Certainty of objects (beneficiaries)
• What is meant by certainty of intention in trust creation?

  Certainty of intention means the settlor must have intended to create a trust while owning the property.
• What happens if there is uncertainty of intention in a trust?

  If there is uncertainty of intention, the property passes as a gift to the trustee.
• What is certainty of subject matter in trust creation?

  Certainty of subject matter requires the trust property to be specified clearly and must presently exist.
• What happens if there is uncertainty of subject matter in a trust?

  If there is uncertainty of subject matter, the property reverts back to the settlor.
• What is certainty of objects in trust creation?

  Certainty of objects means beneficiaries must be sufficiently described to create a complete list.
• What is the 'complete list test' in fixed trusts?

  The complete list test requires beneficiaries to be named or described sufficiently to create a complete list.
• What is conceptual certainty in trust objects?

  Conceptual certainty allows for the identification of a class or group of beneficiaries.
• What is evidential certainty in trust objects?

  Evidential certainty requires evidence proving the members of the class or group of beneficiaries.
• What happens if there is uncertainty of objects in a trust?

  If there is uncertainty of objects, a resulting trust will be implemented in favor of the settlor.
• What happens if a trustee dies or refuses to accept appointment?

  The court will appoint a successor unless the settlor intended otherwise.
• Who can be a trustee?

  Anyone with the capacity to acquire and hold property for their own benefit may be a trustee.
• Can a settlor appoint themselves as trustee?

  Yes, a settlor can appoint themselves as trustee.
• What is the minimum number of trustees required for a trust of land?

  At least 2 trustees are required to give a valid receipt for money received on the sale of land.
• What is the perpetuity period for trusts?

  A trust is void if it does not vest within 125 years.
• What is the limitation for charitable purpose trusts?

  Charitable purpose trusts are limited to 21 years or the rest of a person's lifetime plus 21 years.
• What must be done to transfer legal title of property to a trustee?

  The legal title must be transferred through a signed written declaration of trust.
• What is required to transfer land to a trustee?

  A transfer deed must be executed and registered at HMLR.
• What is required to transfer shares to a trustee?

  A stock transfer form must be signed, and registration with the company.(must note shares are being held on trust)
• What is required to transfer chattels to a trustee?

  There must be an intention to transfer or the chattels must be delivered.
• What is required to transfer legal title to a bank account to a trustee?

  A signed written notice of transfer must be given to the bank.
• What happens if the transfer of property to a trustee fails?

  If the transfer fails, the trust will fail.
• What is the 'every effort test' in trust transfers?

  The 'every effort test' applies if the settlor completed the transfer but the trustee had not registered it.
• What is the rule against fortuitous vesting in trust transfers?

  The rule states that if the settlor dies before the transfer is complete, the intended trustee becomes the personal representative, and the transfer is complete in law.
• What is a gift mortis causa?

  A gift mortis causa is delivered in contemplation of imminent death and is conditional on the donor's death.
• What happens if the donor of a gift mortis causa dies without believing death was imminent?

  If the donor dies without believing death was imminent, the gift fails.
• What is a half secret trust?

  A half secret trust is revealed but the beneficiary is not named in the will.