Creating an Express Trust

Introduction In chapter 14 we saw that enforceability of an express trust depends on proof of certainty in three matters: intention to create a trust, subject-matter and objects. In addition to satisfying the certainty requirements and not infringing public policy prohibitions on creating trusts, an express trust must have been validly created (or constituted). That is, the trust must be properly declared, and title to the trust property must be properly vested in the trustee. Additionally, some trusts must comply with statutory formalities. Unless they meet these requirements they will be unenforceable or void, depending on the statutory provision in question. Methods of creating a trust Testamentary trusts are created by will, and only come into effect on the death of the testator. Inter vivos trusts are trusts that come into effect during the settlor’s life. Inter vivos trusts can be created by a declaration of trust of the settlor’s own property, or by transfer of property to a trustee. Self-declaration of trust A settlor can declare herself trustee of her own property. The settlor already holds title to the property, and all that she has to do is to make a valid declaration of trust. A declaration of trust is simply a way of saying that the requirement of certainty of intention to create a trust has been satisfied. The authorities on certainty of intention are therefore also authorities on declaration of trust. In trusts created by declaration the settlor must intend to impose trustee obligations upon herself.