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(p. 54) 3. Finding Settlors’ Intentions 

(p. 54) 3. Finding Settlors’ Intentions
(p. 54) 3. Finding Settlors’ Intentions

Simon Gardner

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date: 20 June 2021

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter considers the law on the discovery of a settlor's intention in creating an express trust. The principal tool for discovering the settlors' intentions is proof on the balance of probabilities, which means accepting whichever view of the facts is more probable than the other. In particular, judges operate ‘rules of construction’, requiring that in a certain type of situation, a person shall normally be held to have intended to create a trust; or not, as the case may be. But they also follow other, less well crystallized, practices inconsistent with the normal standard of proof. These include family provisions, precatory words, purpose trusts, purpose trusts, contracts for third parties, and gratuitous transfers.

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