EXPRESS TRUSTS
Creation:
An express trust is "created not by facts and circumstances, but by the express words of the settlor". (Fitzgerald v Stewart)
Completely and incompletely constituted trusts:
In all cases the trust must be completely constituted. A trust is completely constituted when the trust property has been vested in trustees for the benefit of the beneficiaries. Where there is merely a contract or covenant to create a trust, the trust is said to be incompletely constituted
Form:
No special form is normally required for the creation of a trust except that a declaration of trust respecting land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust
The three certainties:
A trust will be valid only if the three certainties are present i.e. certainty of words, certainty of subject, and certainty of objects.
Absence of the certainties
- In the absence of certainty of words the donee generally takes beneficially.
- In the absence of the other certainties there is generally a resulting trust in favour of the settlor or his estate.