Creation of trusts—by declaration
Creation of trusts—by declaration

The following Private Client guidance note provides comprehensive and up to date legal information covering:

  • Creation of trusts—by declaration
  • Express lifetime declarations
  • Evidential requirements—personalty
  • Requirements—in respect of land
  • Requirements—equitable interests
  • Declarations of trust and automatic resulting trusts

Express lifetime declarations

Where a trust is created by an express lifetime declaration, the settlor simply declares that they hold the trust property on trust for the specified person or object absolutely. The settlor must be unequivocal in their declaration and should communicate the terms of the trust to the beneficiaries. The following must be present:

  1. there must be property capable of being subjected to a trust

  2. the trust must meet the requirements for formal validity

  3. the terms of the trust must be sufficiently certain (essential validity)

  4. the purpose of the trust must not be unlawful

Evidential requirements—personalty

Provided the conditions for the essential validity of the trust are fulfilled, a declaration of trust in respect of personalty (other than an equitable interest) may be declared:

  1. in writing

  2. orally or

  3. (in exceptional cases) by conduct

There are no legal requirements as to the form of a declaration of trust of personalty. However, it is good practice to ensure that all the terms of such a trust are contained in a written instrument in order to establish the terms of the trust (or even to prove the trust's existence at a later date).

Requirements—in respect of land

Declarations of trust in respect of land, or any interest therein, must comply with section 53(1)(b) of the Law of Property Act