From Lawiki - The law notes repository
Jump to navigation Jump to search
Lawiki for and by law students - find us on Facebook if you want to help us edit this Law Wiki.

Not professional advice - LAWIKI cannot guarantee the validity of any information

In general, a trust is formed when the legal owner (or owners) (see: Trustee) is obliged to hold it for the benefit of some other person, or group of people (the 'objects', or beneficiaries; see: Objecttrust, Beneficiary). A trust may be formed when, for example, the beneficiary cannot legally own the property. Trusts can be loosely classed into four metas.

  • An Express trust, intentionally created by a person out of his right of ownership
  • A Resulting trust, arising by operation of law in connection with an express trust (e.g., where the express trust fails)
  • A Constructive Trust, arising by operation of equity in a variety of other situations.
  • A Statutory trust, which arises by virtue of the application of a particular statute

The trustee is the legal owner of the property, and has full legal rights of ownership. He can, for example, sell or raise a mortgage on the property. However, the equitable interest of the beneficiary is not disturbed, and the new owner of the property will take it subject to those interests (but see: Bona fide purchaser without notice).

A trust will generally impose some duties on the Trustee, if only a duty to allocate the proceeds to the beneficiaries. A duty may be personal, that is, offered to and accepted by a specific individual, or a Duty virtute officii.

In general, the trustee of an epxress trust has a Fiduciary duty to the beneficiaries, and the beneficiaries can seek to enforce that duty in the courts.

Trust Law