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Formalities Of A Trust Notes

GDL Law Notes > GDL Equity and Trusts Notes

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Valid declaration of trust creates a new interest.
Disposition of beneficial interest transfers an existing interest.
Three types of trust:
o Inter-vivos trust

Testamentary Trust

Trust of Land
Inter-vivos trusts:
o May be declared informally (orally or by conduct)
o Recall Paul v Constance [1977] - Cash in the bank account was used for bingo winnings of Claimant and her deceased partner. These had been shared. Conduct sufficient for trust.
o Must comply with Trusts of Land requirements.
Trusts created by will/testamentary trusts.
o Must be contained within a valid will (if the will is invalid all clauses are too).
o S.9 of the Wills Act 1837 (as amended by the
Administration of Justice Act 1982)
 Will must be in writing
 Will must be signed by the testator
 Will must be attested by two witnesses (in the presence of the testator but not necessarily in the presence of each other).
 Attest does not mean signed. May just write name
(Payne v Payne)
 Lack of independence does not invalidate whole will, only invalidates the clauses relating to the non-independent person.
o Any amendments to the will must be made by declaring a new will or a codicil.
Trusts of Land

s.53(1)b of the Law of Property Act 1925 requires all trusts of land be evidenced in writing.
 s.1 TOLATA: a trust of land is any trust which consists of or includes land.
 Non-compliance with s53(1)(b) will render the declaration of trust unenforceable, rather than void.
 This requirement is ad probationem not ad validate: writing is necessary for evidence purposes but not to validate the declaration of trust.
 This means it is possible to declare the trust orally but later provide evidence of that declaration in signed writing.
o The requirement is often ignored as equity will not allow a statute to be used as an instrument of fraud.

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