Express trust Definition

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GLOSSARY

What does Express trust mean?

An express trust is created when a settlor or testator constitutes a trust with the express or inferred intention of creating a trust, whether by declaration of trust or by will, or by disposition of property to trustees or by will, in each case complying with the applicable formalities required by law.

Express trusts may also be created by statute, or by the exercise of powers of disposition over property.

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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...

Nature and classification of trusts—the three certainties

CertaintyIn order for a settlor to create a private express trust the three certainties must be present:•certainty as to the intention of the settlor to create a trust, known as certainty of words, the trust property being intended to be kept separate from other property of the trustee•certainty as to the property to which the trust is to attach, known as certainty of subject matter•certainty as to persons or 'objects' who are intended to benefit, known as certainty of objectsCharitable purpose trusts differ from express trusts for the benefit of persons in respect of the three certainties only in that they do not need to satisfy the certainty of objects, so long as there is a general charitable intention.Certainty as to the intention of the settlor to create a trustThe certainty of intention is satisfied if there is sufficient evidence to show that the settlor or testator clearly intended to create a trust. If the word 'trust' is used, it will normally be a strong indicator that a trust was...

Discover our 39 Practice Notes on Express trust

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...

Declaration of express trust for sale by husband and wife—unequal contributions to purchase of property

Declaration of express trust for sale by husband and wife—unequal contributions to purchase of property Date [date] Parties 1 [name of husband] of [address] (Husband) 2 [name of wife] of [address] (Wife) (together referred to as Joint Tenants) background (A) By a transfer of even date with this Deed but executed before it made between (1) [name of seller] (Seller) and (2) the Joint Tenants, the property described in the Schedule (Property) was transferred to the Joint Tenants free from incumbrances. (B) By a mortgage (Mortgage) of even date with this Deed but also executed before it, the Joint Tenants charged the Property to [name of lender] (Lender) to secure payment to the lender of the sums payable under the Mortgage. (C) The purchase money paid to the Seller was provided: (a) as to £[amount] by the Husband; (b) as to £[amount] by the Wife; (c) as to the balance (being £[amount]) borrowed by the Joint Tenants from the Lender on the security of the Mortgage. (D)...

Dive into our 3 Precedents related to Express trust

A husband’s Will leaves his half of the house in a life interest trust for his wife. The Will contains appropriate powers in relation to the sale of the property and the purchase of a replacement, smaller property at the wife’s request. How is it best for the trustees to document the sale of the house and the purchase of a smaller house in which the trust will own a larger beneficial share? Is there a precedent for this?

A husband’s Will leaves his half of the house in a life interest trust for his wife. The Will contains appropriate powers in relation to the sale of the property and the purchase of a replacement, smaller property at the wife’s request. How is it best for the trustees to document the sale of the house and the purchase of a smaller house in which the trust will own a larger beneficial share? Is there a precedent for this? It has been assumed that there is no mortgage on the property being sold and no mortgage required for the purchase of the smaller property. This response also only deals with the question of beneficial ownership of the land (and not the legal ownership). On a sale and purchase of trust property, the trustees will need to have regard to a number of factors, as detailed in Practice Notes: Administration of trusts—trustee decision making and . Provided that the trustees have properly considered all the relevant issues (including whether...

Registered property is owned by three owners, one of whom has died. The deceased's executors want to transfer the property to the beneficiaries, so an AS1 would seem appropriate. Do the surviving co-owners need to be parties to the AS1?

Registered property is owned by three owners, one of whom has died. The deceased's executors want to transfer the property to the beneficiaries, so an AS1 would seem appropriate. Do the surviving co-owners need to be parties to the AS1? Where land is co-owned legal title is always held as joint tenants, and the presumption is that beneficial or equitable ownership is also as joint tenants. Each joint tenant has an identical interest in the whole land and the interest of one passes automatically on death to the survivor. When the survivor becomes sole legal and beneficial owner the trust ends. Where the beneficial interest is held as tenants in common, interests can be unequal, and the share of one does not pass to the survivor but is part of the deceased estate. Where a tenancy in common is indicated the HM Land Registry will enter a 'Form A restriction' on the title that no disposition by a sole proprietor of the registered estate (except a...

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Whose money is it? Bondholders allowed to join claim relating to bond proceeds (Eraaya Lifespaces v Elara Capital et al [2025])

Banking & Finance analysis: This case involved, among other things, (a) an application by an issuer of bonds for an interim injunction to require a financial adviser to issue a confirmation email to the settlement agent to compel the settlement agent to transfer bond proceeds it held to the issuer, and (b) an application by the bondholders to join the proceedings to oppose the injunction application. The court denied the injunction application on the basis that, among other things, the issuer’s case against the financial adviser was arguably ‘far from strong’ and that, given the issuer’s precarious financial condition and other relevant factors, damages would not appear to be an adequate remedy for the bondholders if it was later determined that the injunction should not have been granted. The court granted the bondholders’ joinder application in part on the basis that the bondholders had arguably demonstrated that the bond proceeds were held in trust on their behalf by the settlement agent. Written by Robert Aulsebrook, senior counsel at Akin Gump...

After more than 70 years, the heirs of a beneficiary are entitled to his trust fund (High Commissioner for Pakistan in the United Kingdom v Prince Mukarram Jah, His Exalted Highness The 8th Nizam of Hyderabad and others)

Dispute Resolution analysis: The dispute raised a wide range of legal issues, including procedural and evidential points, justiciability, conflicts, trusts and restitution, illegality and limitation, all in a fascinating historical context. Written by Fiona Whiteside, barrister at Twenty Essex.

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