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Nature and classification of trusts—the nature and classification of trusts

Nature of trustsThe trust conceptTypically, the settlor is the original owner of property and creates a trust by conveying it to one or more trustees and manifesting an intention that it is to be held on trust for one or more beneficiaries or for the accomplishment of a particular purpose. The trustees become owners at common law and hold the property or rights in trust for the beneficiaries (cestuis que trust) or that purpose. The trustees come under an equitable obligation enforceable by the beneficiaries. No trust is created, whatever the intention of the settlor, unless legal title is vested in the trustee (this is known as constituting the trust).DefinitionWhile the trust concept is recognisable, a definition is not so easy.The definition set out in The Law of Trusts and Trustees 10th edition by Underhill and Hayton was adopted by the Court of Appeal in Green v Russell per Romer LJ: 'A trust is an equitable obligation, binding a person (who is called a trustee) to deal with property over...

Creation of trusts—by declaration

Express lifetime declarationsWhere a trust is created by an express lifetime declaration, the settlor simply declares that they hold the trust property on trust for the specified person or object absolutely. The settlor must be unequivocal in their declaration and should communicate the terms of the trust to the beneficiaries. The following must be present:•there must be property capable of being subjected to a trust•the trust must meet the requirements for formal validity•the terms of the trust must be sufficiently certain (essential validity)•the purpose of the trust must not be unlawfulEvidential requirements—personaltyProvided the conditions for the essential validity of the trust are fulfilled, a declaration of trust in respect of personalty (other than an equitable interest) may be declared:•in writing•orally or•(in exceptional cases) by conductThere are no legal requirements as to the form of a declaration of trust of personalty. However, it is good practice to ensure that all the terms of such a trust are contained in a written instrument in order to establish the terms of the trust...

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Cohabitant claims under the Trusts of Land and Appointment of Trustees Act 1996—client guide

Cohabitant claims under the Trusts of Land and Appointment of Trustees Act 1996—client guide This document provides general guidance regarding the property rights of cohabitants and claims under the Trusts of Land and Appointment of Trustees Act 1996. Your family lawyer will be able to provide specific advice based on your circumstances. Who can apply? Cohabitants do not have the same rights to make property claims as married couples or civil partners. Instead, disputes between cohabitants regarding their interests in a property are determined in accordance with the law of trusts. The 'common law' wife or husband does not exist in law, and claims by cohabitants are very limited in comparison with spouses or civil partners. In some circumstances it may be possible to make a claim on behalf of a child (see: Financial arrangements for children—client guide). There are two main ways in which a cohabitant may have an interest in a property: • as a joint owner, or • where the property is in the...

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If a beneficial joint tenancy is severed, is it possible to establish an unequal division of the beneficial interest either at the time of severance or over the course of subsequent dealings?

If a beneficial joint tenancy is severed, is it possible to establish an unequal division of the beneficial interest either at the time of severance or over the course of subsequent dealings? Severance is the mechanism by which the beneficial ownership of property is divided into shares. An express declaration of a beneficial joint tenancy results in the joint tenants being given equal shares if the joint tenancy is severed (see Goodman v Gallant and Fantini v Scrutton. Where the property was transferred to joint owners without any express declaration of trust, there is a presumption that a beneficial joint tenancy was intended and that on severance each joint

On an application under section 17 of the Married Women’s Property Act 1882/section 66 of the Civil Partnership Act 2004, can the court make a declaration that the legal owner of real property has no beneficial interest in it?

On an application under section 17 of the Married Women’s Property Act 1882/section 66 of the Civil Partnership Act 2004, can the court make a declaration that the legal owner of real property has no beneficial interest in it? The court can make a declaration as to the beneficial ownership of property under section 17 of the Married Women's Property Act 1882 (MWPA 1882) or section 66 of the Civil Partnership Act 2004 (CPA 2004). MWPA 1882, s 17 allows either party in a dispute between husband and wife regarding the title to or possession of property to apply to the court, which may make such order with respect to the property as it thinks fit. CPA 2004, s 66 provides corresponding provisions for civil partnerships. In S v J, the court made a series of declarations following an extensive fact-finding exercise regarding the parties’ beneficial interests in four substantial properties. The application was brought under MWPA 1882 as the parties were engaged but had never formally married due...

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Restructuring & Insolvency weekly highlights—17 April 2025

This week's edition of Restructuring & Insolvency weekly highlights includes: the Court of Appeal’s judgment in respect of the Thames Water restructuring plan, an analysis of the Supreme Court’s rejection of an attempt to modify the fiduciary profit rule (Rukhadze v Recovery Partners GP Ltd), a discussion on directors’ duty to account (Official Receiver v Haq), examination of the High Court’s decision to dismiss an appeal to overturn judgment finding that a guarantor is personally liable for debts (Jones v City Electrical Factors Ltd), plus a round-up of other news and cases for restructuring and insolvency professionals.

Commercial weekly highlights—17 April 2025

This week's edition of Commercial weekly highlights includes: analysis of the Digital Markets, Competition and Consumers Act 2024’s consumer regime and how it will apply to businesses making false or misleading environmental claims, the Commercial Court’s decision in Cohen v RiverRock European Capital Partners LLP which rejected the defendants' arguments that the repayment terms contained in the Memorandum of Understanding were not legally binding, and news that the Cabinet Office has updated its Procurement Policy Note 009 on tackling modern slavery in government supply chains.