Creation of trusts—express trusts

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

  • Creation of trusts—express trusts
  • Constituents of a trust
  • Property capable of being subjected to a trust
  • The trust must meet the requirements for formal validity
  • Parties—the settlor
  • Parties—minors
  • Parties—persons lacking mental capacity
  • Parties—the trustees
  • Parties—the beneficiaries
  • Methods by which express trusts may be created
  • More...

Creation of trusts—express trusts

Constituents of a trust

When drafting, keep in mind that the essentials of creating a validly constituted trust are:

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

  2. the trust must meet the requirements for formal validity

  3. the trust terms must be sufficiently certain so that the trust is administratively workable (ie essential validity)

  4. the purpose of the trust must be lawful

A trust is void if it is created for an illegal purpose or is otherwise contrary to public policy.

Property capable of being subjected to a trust

Any property may be made subject to a trust provided there is no reason in law why the owner is prevented from parting with the beneficial interest in the property:

  1. under the general law

  2. due to the specific circumstances of the relationship between the parties or

  3. where the property is of a particular nature that limits the circumstances in which it may be settled

The trust property must be properly identified.

The trust must meet the requirements for formal validity

Parties—the settlor

Any individual of full age and capacity is capable of creating a trust.

Parties—minors

Where an individual under the age of 18 years purports to create a trust inter vivos, such a trust is voidable at their instance on attaining the age of 18. It cannot be validated by the consent of a parent or

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