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frames as not to give those persons any locus standito apply to the court to enforce the trust, … the beneficiaryprinciplewould … applyto invalidatethe trust”- controversialcategory; notused in Australia to validate such a purpose TTopic 13 – Express Trusts
Equity & Trusts 70517PART 2 – CREATION OF EXPRESS TRUSTS C. COMPLETE CONSTITUTION OF THE EXPRESS TRUST & WRITING REQUIREMENTSExpress Trusts must be completely constitutedin order to be valid.“Complete constitution”:generally refers to the irrevocable“transfer”of the T pty and the creationof the beneficial interestIf the T is completely constituted:it is enforceableby the beneficiaries (even if volunteers) because the settlor has fulfilled his intention by constituting the intended beneficiaries as holders of the equitable interest: Ellison v. Ellison(1802) 31 ER 1243If T has not been fully constituted:a volunteerbeneficiary will not be able to enforce the equitable obligation; “Equity will not assist volunteers”Topic 13 – Express Trusts
Equity & Trusts 70517PART 2 – CREATION OF EXPRESS TRUSTS C. COMPLETE CONSTITUTION OF THE EXPRESS TRUST & WRITING REQUIREMENTSPromise to create a TrustAt CL a gratuitouspromise is notrecognised unless(a) valuable consideration has passed, or(b) it is under seal (Deed)Another argument: the benefit of the promiseunder Seal (Deed) is propertyto be held on Trust for the intended beneficiaryi.e., there could be a constituted Trust of the promiseTherefore:a) if B gave consideration: can seek specific performanceb) if they were parties(together with Trustees) to the agreement/promise (covenant): they could sueon the promisec) if noconsideration + not“party to the promise”: beneficiaries will not be able to enforce the trustFletcher v. Fletcher (1844)HELD that such a “T of a promise” existedDavenport v. Bishop(1843) 63 ER 201Cannon v. Hartley Ch 213;  1 All ER 50Re PryceRe Cook’s Settlement TrustsTopic 13 – Express Trusts
Equity & Trusts 70517PART 2 – CREATION OF EXPRESS TRUSTS C. COMPLETE CONSTITUTION OF THE EXPRESS TRUST & WRITING REQUIREMENTSExpress Trusts are created in three main waysComptroller of Stamps (Vic) v Howard-Smith(1936) 54 CLR 614 at 621-2;  VLR 15;  ALR 198 per Dixon J 1. By Declaration2. By Transfer3. By DirectionTopic 13 – Express Trusts
Equity & Trusts 70517PART 2 – CREATION OF EXPRESS TRUSTS C. COMPLETE CONSTITUTION OF THE EXPRESS TRUST & WRITING REQUIREMENTS1. Creation of Express Trust By Declaration- NEEDS a statement by legal owner of pty intended to be finaland binding that he, from that moment, holds the pty on trust for another (i.e., trustee retains legal interest, but beneficiary holds the equitable)- “transfer” need notoccur, since creator = trustee (samelegal person)The only formalrequirement is in relation to land(writing requirement):s. 23C(1)(a) Conveyancing Act 1919 (NSW): the creation/disposition of an interest in lands. 23C(1)(b) Conveyancing Act 1919 (NSW): a declaration of Trust respecting any landor any interest therein mustbe in writingIf “T pty” is only personalpty: One view is that there isnoneed for formalities;