contract will if there is consideration – the promise can then be enforced as a contract Fraud If there is the prospect of a fraud if the trust is not upheld, then the trust may be upheld and the transfer effected Secret trusts (for testamentary trusts only) In addition to the requirements of an express trust, there is also the requirement for: Intention of the testator to transfer the property Communication of that intention to the intended trustees Acquiescence on behalf of the trustees … then the promise will be enforceable Issue #4 If the settlor did not complete the formalities • If the 3 certainties are present, but the settlor has not completed the formalities required of her, and none of the exceptions apply, is this – An unenforceable promise to create a trust? Another type of legal relationship? • If so, what happens to the property in dispute? Issue #5 Is the trust invalid on any grounds of public policy (illegal trusts) • Even if the trust is valid to this point, could it be invalid on any grounds of public policy? Some types of trusts are illegal on public policy grounds • Types of illegal trusts Breach the rule against perpetuities Are in restraint of alienation of property Disturb the sanctity of marriage or the family Statutory illegality Rule against perpetuities • Perpetuity period
Extends to lifetimes of persons alive at creation of trust and then 21 years from date of death of last survivor Rule invalidates future interests and the trust that infringes the rule fails (the beneficial interest reverts to the settlor) • Property Law Act 1974 (Qld) s 209(1) … where the instrument by which any disposition is made so provides the perpetuity period applicable to the disposition under the rule against perpetuities instead of being of any other duration shall be such number of years not exceeding 80 as is specified in the instrument as the perpetuity period applicable to the disposition Formalities for express trust – inter vivos Formalities for express trust – testamentary dispositions
And failing all else … Is there: • An enforceable promise Rule in Strong v Bird Gifts in contemplation of death Estoppel • A promise to someone who was not a volunteer Consideration was paid Marriage settlement Forbearance to sue • The prospect of a fraud if the trust is not upheld … if any of these exceptions apply the trust may be upheld despite a failure to comply with formalities Trusts and powers • Person with – or who has – “mere powers” is called the donee • Similarities to trustee Property conferred when decision made by trustee or donee Both beneficiaries and objects can control the trust or power For example, to prevent them acting in bad faith Both beneficiaries of discretionary trust and objects of special power can be considered for distribution Objects of power may be in similar position to beneficiaries of trust if donee
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- Two '19
- Law, Wills and trusts, Trust law, Duty