Express trusts in English law

The creation of express trusts in English law must involve four elements for the trust to be valid: capacity, certainty, constitution and formality. Capacity refers to the settlor's ability to create a trust in the first place; generally speaking, anyone capable of holding property can create a trust. There are exceptions for statutory bodies and corporations, and minors who usually cannot hold property can, in some circumstances, create trusts. Certainty refers to the three certainties required for a trust to be valid. The trust instrument must show certainty of intention to create a trust, certainty of what the subject matter of the trust is, and certainty of who the beneficiaries (or objects) are. Where there is uncertainty for whatever reason, the trust will fail, although the courts have developed ways around this. Constitution means that for the trust to be valid, the property must have been transferred from the settlor to the trustees.

If property has not been transferred, the potential trustees and beneficiaries are volunteers, and an equitable maxim is that "equity will not assist a volunteer"; the courts will not look at the case. To get around this, the courts have developed exceptions to this rule for situations when the settlor has done "all that he could do", the trustees or beneficiaries have acquired the property in a different way, or where the gift was made donatio mortis causa. Formality refers to the specific language or forms used when transferring property. For chattels, no formal language or documentation is needed, unless it is made as a will. For land, the transfer must be drafted in line with the Law of Property Act 1925 and the Law of Property (Miscellaneous Provisions) Act 1989. When disposing of an equitable interest, the Law of Property Act 1925 must also be followed; much of the case law in this area has centred on the meaning of "dispose", with many cases involving people attempting to avoid tax.

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. 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. 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.

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