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Express Trusts 1. Capacity a. Settlor b. Beneficiary c. Trustee 2. 3 Certainties a. Certainty of intention; o Intention to create trust relationship • Mandatory words • Terminology (not conclusive) o As distinct from other relationships • Not revocable mandate • Not debt— o Money lent for a specific purpose → Quistclose Trust o Agents holding money on trust b. Certainty of subject matter; o Ascertainable o Fixed trusts → Quantum specified o Future property • True future property (only in equity for consideration) • Future rights accruing from present rights (transferable) c. Certainty of objects o Trust for Persons Specified— • Semantic Certainty o Fixed trusts—list certainty o Discretionary trusts—Criterion certainty • Evidential certainty (does not invalidate) • Administrative certainty o Trust for Persons not specified—Secret trusts (Constitution Post Mortem) i. Intention to create trust ii. Communication of intention to trustee before death o Fully secret trust—of existence & of beneficiary o Half secret trust—of beneficiary o Constructive communication iii. Acceptance by trustee • Construction as not testamentary (outside will) o Beneficiary dies before testator → pass to estate of beneficiary o Beneficiary witnesses will → not invalid o Trust for Purposes (Charitable trusts) • Trust for charitable purposes—valid i. Charitable purpose: Statute of Elizabeth  Poverty  Education  Religion  Other Purposes beneficial to the community  Statutory extensions • Recreation & Leisure facilities: s103(2) TA • Child care: s4(1) ECPA • Self-help groups: s5 • Contemplative religious orders: s5 ii. Sufficient public benefit: not arbitrary, named or political entity o Charitable purpose not ascertainable—general scheme o Charitable purpose impractical—cy pres scheme  Initial impossibility—general charitable intention required Andrew Trotter LWB241 Trusts  Subsequent failure—can be applied  Residue after purpose fulfilled—can be applied • Trust for mixed charitable & non-charitable purposes—valid only for charitable purposes: s104(2) TA • Trust for non-charitable purposes— o Construction as trust for persons (not supported in Australia) o Exceptions to beneficiary principle—permissive only o Construe as trust for unincorporated association—  Gift for members on construction—valid  Gift on trust for charitable purpose of association  Gift made in a will—valid: s33Q Succession Act 3. Title vested in Trustee a. Requirements of Writing o Trust created by declaration O  [←B] • Land—Evidentiary writing by settlor: s11(1)(b) • Personalty—no writing o Trust created by transfer O  T [←B] • Land—Actual writing by settlor/agent: s11(1)(a) • Personalty—no writing o Beneficial interest transferred to third party volunteer T [←B1] [←B2] • Land—Actual writing by settlor/agent: s11(1)(a) • Personalty—Passive subtrust— evidentiary writing by settlor/agent: s11(1) (c) o Beneficial interest transferred to third party for consideration T [←B1] ($) [←($)B2] • Land—Evidentiary writing by settlor: s59 (also constructive trust) • Personalty—Passive subtrust— evidentiary writing by settlor/agent: s11(1) (c) o Beneficial & Legal title transferred to third party [B→] T  O • Land—Actual writing by settlor/agent: s11(1)(a) (The greater includes the less) • Personalty—no writing b. Property is assignable o Public pay—not assignable o Contractual rights o Rights to litigate • Verdict—assignable • Right to litigate—assignable if genuine & substantial interest c. Requirements of Form o Torrens land—registration o Choses in possession • Sale—comply with SGA • Gift—actual or constructive delivery with intention to give o Choses in action • Legal choses in action— o Legal assignment: s199 i. Intention to assign ii. Property sufficiently described iii. Assignment absolute • Not charge • Not part assignment iv. In writing v. Notice
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