Declaration – where a title holder expresses his or hers intention to hold their property on trust for another. 2)Transfer – where title is transferred to a person with instructions that it be held on trust for another. -inter vivos ? occurs during the life of the person (referred to as a ‘settlement’). It may be for consideration or a gift. (NB: Equitable Assignment check list). -post mortem ? occurs after the death of the person (in their will). 3)Direction – where a beneficiary instructs their trustee to hold an interest on trust for another person.
Kinds of Trust Trusts are either: 1. Express Trusts (being examined in this lecture). 2. Charitable Trusts 3. Resulting Trusts (intention presumed) 4. Constructive Trusts (used as a remedy) Three Certainties The law of equity states that a trust must satisfy the 3 certainties. If any of the 3 certainties do not eventuate, the trust will fail: ?Certainty of Intention – it must be clear that the settlor or testator/testatrix (person creating a trust) wanted the trust to exist. ?Resulting (intention presumed) and Constructive (used as a remedy) trusts are immune from this certainty. Intention does NOT need to be expressed through the word ‘trust’. Only the elements of a trust need to be present.
Commissioner of Stamp Duties v Joliffe (1920) 28 CLR 178 -At this stage Qld law stated that a person could only have 1 bank account. -Joliffe set up a 2nd bank account, as a ‘trust account’ for his wife. -When Joliffe’s wife died, death taxes/duties were owed on the account. -Joliffe went to court and argued that he lied and wasn’t actually holding the account on trust for his wife – it was for him. HC agreed with Joliffe. -Rule: If it is possible for the creator of the trust to display to the court that he never/did intend for a trust to exist, the presence or absence of the words ‘trust’ or ‘trustee’ is irrelevant.