Formalities Notes

Formalities Capacity Any person who has power of disposition (n.b. over 18) over a particular type of property can generally create a trust out of it Rules relating to mentally ill are governed by Mental Capacity Act 2005 A person under the age of 18 cannot hold land, although they can hold an equitable interest in it and will do so in the purported conveyance of a legal estate to him, since this takes effect as a declaration of trust in his favour Any trust which a minor does create is voidable until shortly after he turns 18 - if he does not repudiate it then the trust becomes binding on him. However, in order to create even a voidable trust the minor must be old enough to appreciate the nature of his act. Basic rules: * * * No formalities needed to create a lifetime trust of personalty Evidence in writing is required for trust of land All testamentary trusts must be in writing, signed by the testator and attested to by 2 witnesses Statutory requirement of writing An express trust can be created inter vivos either by declaration, where the settlor declares that the specific property vested in him is the subject matter of a trust, or By transfer, where a settlor transfers specific property to trustees for them to hold on trust - this is the only way to create a testamentary trust Provisions governing testamentary trusts Governed by the Wills Act 1837 - s9 provides no will is valid unless: * * * * It is in writing and signed by the testator or some other person in his presence and by his direction surely evidential problems arise here? It must appear that the testator intended by his signature to give effect to the will The signature must be acknowledged by two or more witnesses also present Each of the witnesses must either attest and sign the will or acknowledge his signature in the presence of a testator Provisions governing inter vivos trusts Principal provision is s53 of Law of Property Act 1925: Instruments required to be in writing. (1) Subject to the provision hereinafter contained with respect to the creation of interests in land by parol--- (a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law; (b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will; (c) a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will. (2) This section does not affect the creation or operation of resulting, implied or constructive trusts. A) Different formal requirements Paragraphs a) and c) of subsection 1 require that the transaction be in writing - but the writing need not contain every detail Provided they are sufficiently connected, this writing may be contained in a number of documents (Re Danish Bacon Company Staff Pension Fund trusts) Paragraph b) requires only evidentiary writing - failure to comply does not make the transaction wholly void, but merely unenforceable Thus, the transaction remains valid until one of the parties specifically raises the absence of writing Evidentiary writing can take the most diverse forms (quaere does fax count?) Oakley says that under current law, email does not count, but see European directive from contract law? Nb that Martin does think that electronic signatures will count Writing in b) can only be signed by the grantor, whereas a) and c) can be signed by grantor or an agent who has been authorised in writing Note that Youdan disputes this B) The scope of the different paragraphs a) and b) apply only to interests in land; c) on the other hand is not so restricted Definitions section of Act provides that "equitable interests" means "all other interests and charges in or over land", unless the context otherwise requires English courts have not considered whether this does restrict c) to interests in land or whether context does "otherwise require" Generally thought that the context does otherwise require, since otherwise c) would be superfluous HL applied c) to a relevant disposition of pure personalty in Grey v IRC 

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