Express Trusts Law Teacher

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⇒ Property Rights Act, 1925, p. 60(3): “In a voluntary transfer, a resulting trust is not implied to the settlor merely because ownership is not expressly transferred for the use or benefit of the beneficiary.” There are a variety of practical rules in the use of these trusts, which include both fully secret and semi-secret trusts. If a testator changes the terms of the trust or the property of the trust, he or she must inform the intended trustee; If this is not the case, as in Colin Cooper,[48] the trustee will have the right to retain the newly added property. If the trustees are co-owners of the property, it becomes complicated to inform them of the terms or changes of the trust. If they own the property as roommates, only tenants who have been informed of the trust are required to follow it. If they hold the property as roommates, they are all bound to the trust if even a tenant accepts them before executing the will. When they hold the property as roommates and some accept it, but only after the execution of the will, only those who have accepted it are bound. This area has been described as “rather illogical”. [49] As such, these trusts are unenforceable because they are invalid. This view was expressed by Megarry VC in Re Snowden,[22] where he said: “The whole base of secret trusts.

is that they operate outside the will, do not change anything written in it and allow it to function according to its content, but then attach a trust in the hands of the recipient to the property. This suggests that secret trusts are not constructive trusts, but rather express trusts. [23] ⇒ The reason restitution lawyers were interested in taking over trusts under restitution law was that a trust creates a property right that allows the claim to survive the bankruptcy or bankruptcy of the legal owner; and which allows the plaintiff to accept a possible increase in the value of the property, thereby cancelling out the unjust enrichment at the expense of the plaintiff. Therefore, for a fully secret trust to be valid, it must be shown that there was an intention, that it was communicated to the trustee and that the trustee accepted its obligations. Intent is one of three certainties and applies to fully secret trusts in the same way as to other express trusts. [6] The secret trust was originally designed to prevent fraud facilitated by statute or customary law, consistent with the correct maxim that “fairness will not permit a law to be used as a cover for fraud.” [11] The “fraud” in question is the denial of trust by the intended trustee of the will to use it for his or her own purposes. [12] Thus, Lord Westbury justified secret trusts in McCormick v Grogan,[13] by saying: There are also problems of proof. Since secret trusts are secret by definition, they are difficult to prove in court.

The Parol Evidence Rule states that in the case of written evidence, oral testimony cannot be presented to the court if it contradicts that evidence. Since secret trusts are oral and usually exist outside of the will (a written document), this leads to problems. In Re Keen,[44] the problem arose and the Court of Appeal held that the parolproof rule of evidence applied to secret trusts and that such trusts could not be enforced if they contradicted written documents. In general, the problem is proving that the testator intended to create trust.

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