Trust, Consequences of Failure to Create

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The table below summarises the legal consequences in situations where a Settlor tries to create an express trust, but fails for some reason.

| Defect | Outcome | | No certainty of intention | Transferee (i.e. the person who would have been the Trustee) takes the property free of the trust | | No certainty of subject matter | Transferee takes the property absolutely | | Subject matter certain, but allocation of beneficial interests uncertain | Transferee holds on resulting trust for settlor (see, e.g., Boyce v Boyce (1849)) | | No certainty of objects | Transferee holds on resulting trust for settlor | | Trust not constituted | Settlor retains the property, but may be sued to constitute the trust | | The terms of a secret trust are neither communicated to nor accepted by the intended secret trustee before the testator's death | Intended secret trustee takes the legacy free of the trust | | The terms of a half secret trust are neither communicated to nor accepted by the intended trustee before the will is executed | The intended trustee holds on resulting trust for the testator's estate |

UK LAW
Trust Law