Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter, which is on formality requirements and incompletely constituted trusts, discusses the different formality requirements for different types of property. It states that transactions in land require writing. It also looks at the difference between a declaration of trust and a transfer of property and mentions that the disposition of an equitable interest must be in writing; that contracts to transfer property to trustees can only be enforced by the parties to the contract, not the beneficiaries (incompletely constituted trusts); and that marriage settlements are an exception in that beneficiaries within the marriage consideration may enforce a contract to transfer property to the trustees.
Chapter
4. The formality requirements and incompletely constituted trusts
Chapter
2. Trusts in context
This chapter places trusts in their contemporary social, economic, legal, and international context. It first discusses their significance to the world outside the lawyer’s office, and shows that they play an important social and economic role in the lives of ordinary people. The trust operates in key areas such as home, employment, and commerce. The chapter also examines the trust in the context of laws, focusing on how it corresponds to, and coexists with, other legal ideas such as contract, debt, powers, gift, agency, bailment, tax, and corporation, and concludes by looking at the international and comparative dimension of the trust.
Chapter
5. Ineffective disposition of benefit: resulting trusts
If the beneficial owner of an asset transfers the asset to another who does not give or promise anything in return, and where there is no evidence of any intention on the former’s part to make a gift or trust of the property, it is impossible to determine to whom the benefit of the asset belongs. In this case, the beneficial ownership of the asset is assumed to be held by the beneficiary for the owner under a resulting trust. The resulting trust is therefore a type of trust that arises when there is no express intention to create it. This chapter examines the ineffective disposition of benefit, focusing on the resulting trusts. It also discusses the established factual categories of the resulting trust, the theory behind resulting trusts, rebutting the presumption of a resulting trust, resulting trusts of surplus benefits, the Quistclose trust, and pension fund surpluses.
Chapter
2. Trusts in context
This chapter places trusts in their contemporary social, economic, legal, and international context. It first discusses their significance to the world outside the lawyer’s office, and shows that they play an important social and economic role in the lives of ordinary people. The trust operates in key areas such as home, employment, and commerce. The chapter also examines the trust in the context of laws, focusing on how it corresponds to, and coexists with, other legal ideas such as contract, debt, powers, gift, agency, bailment, tax, and corporation, and concludes by looking at the international and comparative dimension of the trust.
Chapter
5. Ineffective disposition of benefit: resulting trusts
If the beneficial owner of an asset transfers the asset to another who does not give or promise anything in return, and where there is no evidence of any intention on the former’s part to make a gift or trust of the property, it is impossible to determine to whom the benefit of the asset belongs. In this case, the beneficial ownership of the asset is assumed to be held by the beneficiary for the owner under a resulting trust. The resulting trust is therefore a type of trust that arises when there is no express intention to create it. This chapter examines the ineffective disposition of benefit, focusing on the resulting trusts. It also discusses the established factual categories of the resulting trust, the theory behind resulting trusts, rebutting the presumption of a resulting trust, resulting trusts of surplus benefits, the Quistclose trust, and pension fund surpluses.
Chapter
5. Formalities
This chapter examines the processes for creating an express trust, which involves two elements. The first involves possible formality requirements relating to the creation of the trust itself, particularly involving trusts of land and testamentary trusts. It also considers how a trust may be valid despite failure to satisfy these requirements, notably where a statute is being used as an instrument of fraud or where a secret trust is recognized. The second element involves the formality requirements which need to be satisfied to ensure that title to property is vested in the trustees, so that the trust is constituted. Constitution of the trust is considered where a settlor declares themself as a trustee and also where another party is declared as a trustee. The chapter also examines when Equity may intervene where a trust has not been properly constituted or where a gift has not been validly transferred to a donee.
