Creation and requirements of express trusts - The beneficiary principle and the rule against perpetuities

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Overview

Express trusts are a vital part of English trust law, critical for managing wealth, planning estates, and supporting charitable activities. For legal professionals aiming to pass the SQE1 FLK2 exam, it's important to know the specific requirements for creating a valid express trust. This article explores key elements such as the three certainties, the beneficiary principle, and the rule against perpetuities. By understanding these, you’ll be ready to analyze trust scenarios, spot potential issues, and confidently apply the law in practical settings.

The Three Certainties: Key to a Valid Trust

To establish a valid express trust, it's necessary to satisfy three certainties: intention, subject matter, and objects. As established in Knight v Knight (1840), these principles ensure a settlor's wishes are clear and enforceable.

1. Certainty of Intention

The settlor must clearly intend to create a trust, imposing a binding obligation on the trustee. This is judged objectively through the settlor's words and actions.

Main points:

  • Words expressing mere hope or wishes are generally not sufficient.
  • The substance of the arrangement is more important than form.
  • No specific language is required, but the intention must be clear.

Case law:

  • Knight v Knight (1840): Set the precedent for intention.
  • Paul v Constance [1977]: Showed how intention can be inferred from behavior.

Example: A settlor states, "I wish to leave all my shares in Acme Corporation to my daughter, Sarah, to be held in trust for her children." This clearly demonstrates an intention to create a trust.

2. Certainty of Subject Matter

The trust assets must be clearly defined so the trustee can carry out their duties. Both the assets and the beneficiaries' interests need to be certain.

Considerations:

  • The property must be described precisely.
  • Assets need to be identifiable and distinguished from others.
  • Can include both tangible and intangible assets.

Case law:

  • Palmer v Simmonds (1854): Raised issues with vague property descriptions.
  • Hunter v Moss [1994]: Dealt with intangible property.

Example: Saying, "I give the bulk of my estate to my son, John, to hold in trust for his children," fails because "bulk" is too vague.

3. Certainty of Objects

Beneficiaries must be clearly identifiable to ensure proper distribution.

Approaches:

  • Fixed list certainty requires a complete list of beneficiaries.
  • Conceptual certainty uses clear descriptions.
  • Discretionary trusts need a conceptually certain class of beneficiaries.

Case law:

  • McPhail v Doulton [1971]: Established tests for certainty.
  • Re Gulbenkian's Settlements [1970]: Applied these tests to fixed trusts.

Example: Stating, "I give my entire estate to my trustee to hold for my 'dear friends'," fails due to lack of clarity.

The Beneficiary Principle: Ensuring Enforceability

The beneficiary principle requires a trust to have identifiable beneficiaries who can enforce its terms, ensuring individuals have a vested interest.

Main aspects:

  • Trusts typically need human beneficiaries.
  • Charitable and specific statutory purpose trusts are exceptions.

Case law:

  • Morice v Bishop of Durham (1804): Established this principle.
  • Re Denley's Trust Deed [1969]: Outlined limited exceptions.

The Rule Against Perpetuities: Limiting Trust Duration

This rule prevents property from being bound indefinitely, aiming to ensure assets aren't restricted for overly long periods.

Principles:

  • Interests must vest within the allowed period.
  • Modern reforms allow up to 125 years for certain trusts.

Case law:

  • Re Astor's Settlement Trusts [1952]: Applied this rule to charitable trusts.
  • Re Allen (1965): Illustrated modern approaches.

Practical Applications

When crafting trust documents, consider:

  1. Clear Language: Use precise terms.
  2. Defining Assets: Identify property clearly.
  3. Identifying Beneficiaries: Define beneficiaries with certainty.
  4. Complying with RAP: Be mindful of the time limitations.

Advanced Scenarios

Complex Discretionary Trusts

Trusts set for "descendants who achieve academically" test understanding of discretionary trust objects.

Purpose Trusts

Creating a trust for "maintaining my rare book collection" examines purpose trust challenges and exceptions.

Commercial Contexts

Managing employee pensions in a trust exceeding traditional periods explores the application of recent trust laws.

Conclusion

Understanding express trusts, including the three certainties, the beneficiary principle, and the rule against perpetuities, is essential for SQE1 FLK2 exam success. These principles ensure valid trusts, protect beneficiaries, and support the effective circulation of wealth. Familiarity with these concepts enables the analysis of trust scenarios and the delivery of sound legal advice.