Wills, Probate and Trusts
Introduction to Classification and Types of Trust
Classification of Trust
In Private trusts, the beneficiaries are human beings
Simon declared a trust for the benefit of his son Mike and daughter Elisa, appointed his best friend Adam as a trustee. Simon had transferred his house, car, saving, and Shares into trust. This is a private trust
These are trusts for charitable purposes such as relief of poverty, the advancement of education, the advancement of religion and any other purpose which is beneficial to the general public (Please refer to charitable trust a separate chapter)
Simon declared a trust for the relief of poverty among poor men and women of Oldham, appointed his best friend Adam a trustee. Simon has transferred his house, car, saving, and Shares into trust. Simon has effectively set up a charitable Trust.
Exceptional Purpose Trusts
These include trusts
- Trusts to look after a pet (cats, dogs, etc)
- Trusts to maintain a grave or tomb
- Trust to say masses for the deceased
- Trusts for unincorporated associations such as clubs and societies
Types of Trusts
These are expressly created trust either orally or in writing. (through trust instrument)
However, a deceleration of trust for land or any interest on land or disposition of an equitable right must be in writing.
It is advised that whenever land is involved the dealing must be recorded in writing to avoid any complications
Trust instrument is a deed that is in writing and is used to declare a trust. It also provides the terms of the trust and identity of the beneficiaries. A will is also a trust instrument. Both Deed and Will require the signature of the person who is setting up the trust or writing a will and two witnesses.
The trust instrument (a document that sets out trust, could be a Will) will lay down the shares or the interest that each beneficiary will take.
Simon, my BMW car to my son Mike, all my Shares in Tesco to my daughter Elisa, My only house to my wife. Upon the distribution of the property to beneficiaries as per the instructions of Simon the trust will end.
Trustees have discretion or a choice as to whom they give the property.
Simon, all my property in trust for my children and trustees shall apply the income from my property for the benefit of all or any of my children in such amount and at such time as they think fit.
In secret trust the identity of the beneficiary is not disclosed, the rules will not apply to the secret trust. There are two types of secret trust. Full secret trust and half secret trust. (Please refer to the chapter of secret trust)
Simon, my only house to my friend James (on the face it is an outright gift but it may be intended for someone else). This is an example of full secret trust.
Simon, £100,000 to my friend James for the purpose I have instructed him separately. This is an example of half secret trust.
Bare/ Simple Trusts
In Bare trusts, trustees hold the trust property for distribution to beneficiaries but they do not have any more duties to perform.
Simon, my BMW car to my son Mike, all my Shares in Tesco to my daughter Elisa, my only house to my wife is a perfect example of bare and fixed trust at the same time.
They are created by the operation of law. Resulting Trusts are imposed by the courts. They are not created by a settlor (the person who creates trust but is alive) or a testator ( the person who creates trust but has died since).
Automatic Resulting Trust
Where trust fails for some reason, for example, lack of certainty of Subject or Object, the trustees will hold the property on Resulting trust and will be returned to Settlor or an estate of a Testator
- Simon, the bulk of my property to trustees to hold on for my son Mike and daughter Elisa (No trust as the property, subject matter is not certain). This will give rise to an automatic Resulting Trust and the trustees will hold the property on Resulting Trust for Simon with a further duty to transfer it back to Simon if he is alive or the property will go to the estate of Simon if he is deceased
- Simon, all my real and personal estate to Bishop of Canterbury to such objects of benevolence as the Bishop of Canterbury in his own discretion shall approve of… (Trustees will hold the property on resulting trust for the Simon or if Simon is deceased trustees will hold the property on resulting trust for his estate)
Presumed Resulting Trust
This depends on the presumed intention of the settlor. The question courts have often looked into is what a settlor would have intended if he/she had thought about it?
- Person A pays for property and puts it legally into the name of person B, it is presumed in law that person A intended to keep it. B simply holds the property on resulting trust for A.
- Person A and B both contributed to the purchase price of the property. It is presumed that they hold it in proportion to the amount that they contributed and Both Person A and B hold it on resulting trust
- Person A pays for the property and legally transfers the property to Person B, as receives nothing in return unless there is evidence that the transfer was a gift to person B, it is assumed in law that
Like Resulting Trusts, Constructive Trusts are also imposed by courts in a variety of situations, usually when someone acquires property from another person wrongfully. Constructive trusts are based on the bad conscience of the holder of the property and courts have decided cases based on what is just, fair and reasonable. (Constructive and Resulting trusts have huge implication and importance in Property law, please refer to Constructive and Resulting Trusts, under property law)
Simon, while living with his daughter’s house paid money for the building of the extension. They quarreled and Simon has left the property and demanded the money back. Simon’s daughter is likely to be forced to give back the money and the court may impose a constructive trust for Simon and his daughter may likely to be held as holding the money on a constructive trust
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While every effort has been made to ensure the accuracy of the information provided in this article, it does not constitute legal advice and cannot be relied upon as such. Each legal case and issue may have unique facts and circumstances, as a result legallex does not accept any responsibility for liabilities arising as a result of reliance upon the information provided. For further help and guidance, you can always rely on and seek advice from our experienced lawyers.