Creation of express trusts in English law

The first requirement of an express trust is capacity; the person creating the trust must be legally capable of doing so. Generally speaking, anyone capable of holding property can form a trust, although there are exceptions. A minor cannot hold land, and therefore cannot create a trust of land; in addition, unless they are soldiers or "mariners at sea", they cannot form a valid will.[1] Where a minor tries to create a trust, it will be held voidable, and can be repudiated by him when he reaches majority, or soon after. Where the trust is clearly of detriment to the minor, the courts may decide to take it as void; the individual, when he reaches majority, could alternately plead non est factum if he had been too young to appreciate the nature of forming a trust.[2] People who are considered mentally disordered (under the Mental Health Act 1983) and have a receiver appointed cannot have trusts directly enforced against them, as they no longer have control over their property. Where there is no receiver, the mentally disordered person's trust will be held void, unless it was made during a lucid period when the person was capable of understanding their actions. Corporations and statutory bodies only have the powers granted to them by their memorandum of association or authorising statute; if these do not authorise the creation of trusts, any such trust will be held to be ultra vires.[3]

Lord Langdale, who first conceptualised the three certainties in Knight v Knight

For an express trust to be valid, the trust instrument must show certainty of intention, subject matter and object.[4] Certainty of intention means that it must be clear that the settlor or testator wishes to create a trust; this is not dependent on any particular language used, and a trust can be created without the word "trust" being used,[5] or even the settlor knowing he is creating a trust.[6] Since the 1950s, the courts have been more willing to conclude that there was intention to create a trust, rather than hold that the trust is void.[7] Certainty of subject matter means that it must be clear what property is part of the trust.[8] Historically the property must have been segregated from non-trust property; more recently, the courts have drawn a line between tangible and intangible assets, holding that with intangible assets there is not always a need for segregation.[9] Certainty of objects means that it must be clear who the beneficiaries, or objects, are.[10] The test for determining this differs depending on the type of trust; it can be that all beneficiaries must be individually identified,[11] or that the trustees must be able to say with certainty, if a claimant comes before them, whether he is or is not a beneficiary.[12]

Uncertainty comes in four categories: conceptual uncertainty, evidential uncertainty, ascertainability and administrative unworkability.[13] Conceptual uncertainty arises when the language is unclear, which leads to the trust being declared invalid. Evidential uncertainty is where a question of fact, such as whether a claimant is a beneficiary, cannot be answered; this does not always lead to invalidity.[14] Ascertainability is where a beneficiary cannot be found,[15] and administrative unworkability arises when the nature of the trust is such that it cannot realistically be carried out.[16] Trustees and the courts have developed various ways of resolving uncertainties, including the appointment of experts to work out evidential uncertainty, and giving trustees the power to decide who is or is not a beneficiary.[17]

The trust must then be formally constituted, by the transfer of its property to the trustees. For chattels, merely handing the property to the trustees is sufficient, assuming it comes with the relevant intention to create a trust. In some circumstances, providing the intention and telling the trustees where to find the property is sufficient, as in Thomas v Times Books.[18] Where the property is land or an equitable interest in land, it must be transferred by writing in accordance with Sections 52-3 of the Law of Property Act 1925. When dealing with shares, the transfer is not complete until a transfer document has been completed and the company has entered the change of ownership in its books.[19] One of the equitable maxims is that "equity will not assist a volunteer"; if someone does not have an interest in property, they cannot bring a court case. When trusts are not properly constituted, the trustees and beneficiaries have no equitable interest in the property, and so are volunteers. There are several exceptions to this maxim.[20] The courts are willing to hear cases where the transfer was not completed, providing the intended beneficiaries or trustees have gained an interest through being made executor of the settlor's estate (the rule in Strong v Bird), or the gift was given donatio mortis causa, or where the settlor did all he could do, as in Re Rose,[21] or where it would be "unconscionable" to hold the gift invalid, as in Pennington v Waine.[22][23]

As a general rule, there is no requirement for particular formalities in trust instruments, they can be oral or written. The only requirement is that they show an intention to create a trust. The exceptions are where it is a transfer of land, the transfer of existing equitable interests,[24] or where the trust is made in a will.[25]

• Edwards, Richard; Nigel Stockwell (2007). Trusts and Equity (8th ed.). Pearson Longman. ISBN 978-1-4058-4684-4.
• Hudson, Alastair (2009). Equity and Trusts (6th ed.). Routledge-Cavendish. ISBN 978-0-415-49771-8.