Express trusts

• What do unique demands refer to in the context of trusts?

  Every topic has its own set of unique demands.
• Why is it important to know the unique demands of each topic?


  It is good to know what these unique demands are.
• What are the unique demands for the three certainties in trusts?

  Identifying the express trust and understanding the importance of "form".
• Why is "form" important in the context of express trusts?

  "Form" is important because different rules apply depending on the concept under scrutiny.
• What are the two different forms that express trusts can take?

  Express trusts can be "fixed" and "discretionary".
• How are trusts often defined according to the study material?

  Trusts are often defined by what they are not rather than what they are.
• Why is it difficult to provide an exact definition of a "trust"?

  An exact definition is difficult because scholars compare trusts to other legal concepts like contracts.
• What challenge arises from comparing trusts to other legal concepts?

  It creates a unique demand as it is sometimes difficult to distinguish trusts from these other concepts.
• Why is it important to identify trusts?

  It is important to be able to identify trusts due to their complex nature.
• How did equity emerge in relation to common law?

  Equity emerged as a flexible means to achieve justice by remedying the common law's shortcomings.
• What irony exists in the development of equity and trusts over time?

  Equity and trusts developed the same problems over time as common law.
• What is a characteristic of the area of trusts according to the study material?

  This area is rich in case law.
• What is required to do well in the area of trusts?

  A good knowledge and understanding of the cases is required.
• What is the main form of trust according to Virgo?

  The main form of trust is the express trust.
• How do private express trusts arise?

  Private express trusts arise because of the express intention of the settlor.
• What does Virgo suggest about the requirements for creating a valid trust?

  Virgo suggests that the requirements are easily met by taking legal advice and careful drafting.
• What does Virgo state about the problems arising from trust creation?

  Most problems arise from a failure to obtain legal advice or follow it.
• What is a fundamental principle regarding judges and trusts?

  A fundamental principle is that judges will try to uphold a trust if they can.
• Why is the settlor's intention considered sacrosanct in the context of trusts?

  The court sees their intention and actions as sacrosanct, especially with wills since the creator may have passed away.
• What did Lord Wilberforce state in McPhail v Doulton regarding trusts?

  A trust should be upheld if there is sufficient practical certainty in its definition.
• What does Grbich suggest about the court's approach to trust instruments?

  The court will bend over backwards to construe sense into instruments.
• How should the court approach the construction of trusts?

  The court should regard the objective meaning of the words as a whole and consider the circumstances at the time of the trust’s creation.
• How can express trusts be created?

  Express trusts can be made by will or arise inter vivos.
• How do resulting and constructive trusts operate?

  Resulting and constructive trusts arise by the operation of law.
• What are the two types of express trusts mentioned?

  Fixed trusts and discretionary trusts.
• How is the interest of the beneficiary identified in fixed trusts?

  The interest of the beneficiary is identified and "fixed" in the trust instrument.
• What is the role of trustees in discretionary trusts?

  Trustees have discretion to distribute the property as they wish to people from a particular class of potential beneficiaries.
• What is the difference between exhaustive and non-exhaustive discretionary trusts?

  Exhaustive trustees must distribute all income accruing, while non-exhaustive trustees can accumulate income.
• What are express trusts and how are they created?

  • Express trusts are created intentionally by the settlor or testator.
  • They can be declared by the settlor or transferred to another to hold on trust.
• What is the approach of the court in the construction of trusts?

  • The court should consider the objective meaning of the words as a whole.
  • The court should take into account the circumstances at the time of the trust’s creation.
• What are the forms of express trusts and their characteristics?

  • Fixed trusts: Beneficiary's interest is identified and fixed in the trust instrument.
  • Discretionary trusts: Trustees have discretion to distribute property among a class of beneficiaries.