An express trust is created when a settlor or testator constitutes a trust with the express or inferred intention of creating a trust, whether by declaration of trust or by will, or by disposition of property to trustees or by will, in each case complying with the applicable formalities required by law.
Express trusts may also be created by statute, or by the exercise of powers of disposition over property.
Nature of trustsThe trust conceptTypically, the settlor is the original owner of property and creates a trust by conveying it to one or more trustees and manifesting an intention that it is to be held on trust for one or more beneficiaries or for the accomplishment of a particular purpose. The trustees become owners at common law and hold the property or rights in trust for the beneficiaries (cestuis que trust) or that purpose. The trustees come under an equitable obligation enforceable by the beneficiaries. No trust is created, whatever the intention of the settlor, unless legal title is vested in the trustee (this is known as constituting the trust).DefinitionWhile the trust concept is recognisable, a definition is not so easy.The definition set out in The Law of Trusts and Trustees 10th edition by Underhill and Hayton was adopted by the Court of Appeal in Green v Russell per Romer LJ: 'A trust is an equitable obligation, binding a person (who is called a trustee) to deal with property over which he has control (which is called the trust property), for the benefit of persons (who are called the beneficiaries or, in old cases, cestuis que trust), of whom he may himself be one, and any one of whom may enforce the obligation.'However, this definition takes
CertaintyIn order for a settlor to create a private express trust the three certainties must be present, namely:•certainty as to the intention of the settlor to create a trust (known as certainty of words), the trust property being intended to be kept separate from other property of the trustee•certainty as to the property to which the trust is to attach (known as certainty of subject matter)•certainty as to persons or 'objects' who are intended to benefit (known as certainty of objects)Charitable purpose trusts differ from express trusts for the benefit of persons in respect of the three certainties only in that they do not need to satisfy the certainty of objects so long as there is a general charitable intention.Certainty as to the intention of the settlor to create a trustThe certainty of intention is satisfied if there is sufficient evidence to show that the settlor or testator clearly intended to create a trust. If the word 'trust' is used, it will normally be a strong indicator that a trust was intended.No technical expressions are necessary to create a trust: a trust may be created by the general tenor of an instrument without using the word 'trust'. For example, the words 'for the purpose of providing some useful memorial to myself' were held in Re Endacott
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Declaration of express trust for sale by joint tenants to sever the joint tenancy in equity This Declaration of Trust is made on [insert date] Parties 1 [insert full name of the first joint tenant] of [insert address] 2 [insert full name of the second joint tenant] of [insert address] and 3 [insert full name of the third joint tenant] of [insert address] (and the parties to this deed are together referred to as 'the Joint Tenants') Whereas (A) By [a [conveyance OR transfer] dated [insert date] and made between [insert parties] OR a settlement dated [insert date] and made between [insert parties] OR an assent dated [insert date] and made by [insert name of personal representative(s)]] and the Joint Tenants [and in the events which have happened] the property described in the schedule ('the Property') is vested in the Joint Tenants in fee simple as beneficial joint tenants [and is registered in their names as proprietors at HM Land Registry under the title number referred to in the schedule] (B) The rents and profits of the Property have up to the date of this deed been collected paid and applied in accordance with the directions and to the satisfaction of the Joint Tenants (C) The Joint Tenants desire to sever the joint tenancy in equity at present subsisting in the Property upon the terms appearing below Now this deed witnesses as
Declaration of express trust for sale by husband and wife—unequal contributions to purchase of property This Declaration of Trust is made on [insert date] between [insert full name of husband] of [insert address] (the Husband) and [insert full name of wife] of [insert address] (the Wife) (together referred to as the Joint Tenants). Whereas (A) By a transfer of even date with this deed but executed before this deed and made between (1) [insert name of the seller] and (2) the Joint Tenants and in consideration of the payment by the Joint Tenants to [insert name of the seller] of the sum of £ [insert amount] the property described in the schedule (the Property) was transferred to the Joint Tenants free from incumbrances. (B) By a mortgage (the Mortgage) of even date with this deed but also executed before this deed the Joint Tenants charged the Property to [insert name of lender] (the Lender) to secure the payment to the Lender of the sum of £[insert amount] with interest on it at the rate and by the instalments and subject to the terms and conditions set out in the Mortgage. (C) The purchase money paid to [insert name of the seller] in consideration of the transfer was provided as to £[insert amount] by the Husband and as to £[insert amount] by the Wife and as to the
Dive into our 3 Precedents related to Express trust
Can one legal owner own the legal title to a property for one or more other beneficial owners as joint tenants? Under English law relating to registered land, the legal title to land is held by the registered proprietor who may hold that land for himself, for himself and others, or for others. Even in the case of a trust of land there is no minimum number of trustees: see Re Myhill and section 25 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). It is the case, however, that a sole trustee of land cannot give a good receipt for the capital money unless that trustee is a trust corporation. Where there are two legal owners, then they always hold the legal estate as joint tenants so that if one dies the legal title passes automatically to the survivor by the right of survivorship, ie by operation of law. The legal owners, however, might have held the property on trust for themselves as beneficial joint tenants, for themselves as tenants in common in equal or unequal shares, for themselves and others as beneficial joint tenants or as tenants in common, or on trust for others alone. After the death of the co-legal owner the surviving legal owner would continue to hold the beneficial interests on the same trusts. If the deceased legal
A rent deposit paid under a commercial lease is to be held on trust and the deposit entitles but does not require the landlord to withdraw from it in the event of default. Can the landlord elect to forfeit and then use the rent deposit to settle rent arrears after forfeiture? Background A rent deposit is a sum of money provided by a tenant to its landlord by way of security for: (i) payment of the rent; and (ii) performance of the covenants found in the lease. The rent deposit deed itself will, in the usual circumstances, set out in detail when a landlord can draw down against the rent deposit and the conditions that the tenant must meet before the rent deposit is repaid to it. The primary benefit of a rent deposit to commercial landlords is that it allows them to have access to an immediate source of funds that can be withdrawn when a tenant acts in a manner which amounts to a breach of covenant, including, for the avoidance of doubt, the covenant as to payment of rent. This has the added benefit of enabling the landlord to access funds without needing to take legal proceedings in order to recover the debt or to secure performance of any other contractual obligation. Trust structure It is possible for a rent deposit to be structured in such a way
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This week’s edition of Private Client highlights includes: (1) The Guardian newspaper’s challenge of the secret hearing concerning HRH Prince Philip’s Will; (2) The Law Society publishes the HMCTS probate service update for July 2022; (3) HMRC issues updated guidance on non-resident trusts; (4) The Register of Overseas Entities (Delivery, Protection and Trust Services) Regulations 2022; (5) Parliamentary inquiry on tax reliefs; (6) The GAAR Advisory Panel delivers its first opinion in favour of taxpayer; (7) The Money Laundering and Terrorist Financing (Amendment) (No 2) Regulations 2022; (8) Re London Oil & Gas Ltd (in administration) which contains a helpful summary of the principles of agency law and the ability of a director to bind a company; (9) STEP and CIOT publish responses to HMRC’s consultation ‘Expanding the Investment Transactions List for the Investment Management Exemption and other fund tax regimes’, and (10) Batten v HMRC, in which the FTT provides guidance on factors relevant to the tax residency rules prior to 2013.
Practice Compliance analysis: The Money Laundering and Terrorist Financing (Amendment) (No 2) Regulations 2022 (Amendment No 2 Regulations) amend the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (MLR 2017).
Read the latest 41 News articles on Express trust
ContributorsLESLEY KING, LL.B., Dip. Crim., SolicitorProfessor and Professional Development Consultant with the University of LawNICHOLAS RADCLIFFE, SolicitorCHRIS WHITEHOUSE, B.A., B.C.L., Barrister5 Stone Buildings, Lincoln’s Inn, LondonTitle overviewThe TRUSTS AND SETTLEMENTS title is concerned with the law relating to the creation of trusts and settlements, their administration, their variation and their taxation. The title is published in three volumes. Volume 40(1) (2017 Reissue) deals with the creation of trusts and includes complete trust precedents as well as a substantial clause bank. This volume is concerned with the administration
ContributorsELIN DUKES, B.A., M.A., T.E.P., SolicitorConsultant for Commonhold and Leasehold Experts LimitedEILE GIBSON, C.T.A.Tower Bridge Tax PracticeLESLEY KING, LL.B., Dip. Crim., SolicitorProfessor and Professional Development Consultant with the University of LawRICHARD WHITAKER, T.E.P., C.T.A., SolicitorTolleyAdvance Tax ManagerTitle overviewThe title WILLS AND ADMINISTRATION is concerned with the preparation and drafting of wills, their administration, their variation and their taxation implications. The title is published in three volumes. Volume 42(1) (2021) deals with the preparation and drafting of wills and includes checklists and standard clauses of use to those drafting wills, volume
Express trust is referenced 2 in Encyclopaedia of Forms and Precedents
228. Time not of the essence of the contract. Analogous to relief against forfeiture is the rule of equity that time is not of the essence of a contract unless the parties have either expressly so stipulated1 or the nature of the contract requires it2. If, however, one party to a contract for the sale of land fails either to complete or to perform some other obligation under the contract by the date fixed by the contract, the other party is entitled then and there to give notice requiring completion within a specified time; and, if the
There is no generally agreed classification of trusts. Under one classification trusts are either: (1) express trusts, which are created expressly or impliedly by the actual terms of some instrument or declaration, or which by some enactment are expressly imposed on persons in relation to some property vested in them, whether or not they are already trustees of that property1; or (2) trusts arising by operation of law (other than express trusts imposed by enactments)2.
Express trust is referenced 3 in Halsbury's Laws of England
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