Formalities

Question 1

Inter vivos (lifetime) trusts of personalty (moveable assets other than real property)

Answer 1

Demonstrated by actions and words - no other formalities required

Question 2

Inter vivos trust of realty

Answer 2

Must comply with s53(1)(b) LPA 1925 - proved by some writing and signed by settlor. Unenforceable if not complied with (but not void) and property is held on resulting trust for settlor.

Question 3

Testamentary trusts

Answer 3

Must be in writing, signed by testator and attested by two witnesses.

Question 4

Disposition of an equitable interest

Answer 4

Must be in writing and signed by the person disposing the interest. Non-compliance renders the disposition void.

Question 5

Assignment of equitable interest

Answer 5

Must be in writing and signed or otherwise renders the disposition void.

Question 6

Where beneficiary directs trustees to transfer trust property to another

Answer 6

Legal and equitable interest merge and so no need to comply with s53(1)(c).

Question 7

Where beneficiary directs trustees to to hold equitable interest on trust for another.

Answer 7

Considered a disposition and must comply with s53(1)(c) otherwise is void.

Question 8

Entering into a contract for valuable consideration to assign the equitable interest.

Answer 8

Disposition and must comply with s53(1)(c) 1925.

Question 9

Declaring oneself a trustee of one’s equitable interest.

Answer 9

A genuine attempt to create a sub-trust will not need to comply with the formalities but an assignment will. Beneficiary must have an active role as trustee in the sub-trust.