How to Legally Create a Trust
When considering the how to create a trust, there are three elements of which are needed to make any trust valid.
If the trust does not have these, the trust will be invalid.
These elements include the three certainties which must be present.
The trust must either be completely constituted or be supported by valuable consideration, where statutes requires, the trust must be created in writing or evidenced in writing, there must also be no latent law, such as the incapacity on the part of the author of the trust, illegality of purpose or other vitiating factor.
In the case of Knight v Knight (1840) 3 Beav 148 Lord Langdale stipulated that no trust will be valid unless the three certainties exist; that is, certainty of words, certainty of subject and certainty of object.
This was a direct statement from the accepted principles of English law at the time.
It also coincided with the efforts of Lewin and others to give structure to the exposition of the law.
It became a foundation for the analysis of the law of creation of trusts.
Three certainties remain useful as a loose grouping of legal things, but they must not be regarded as identifying a set of precise principles, or is indicating that there are only three principles operating in this area.
In fact, the expression certainty the intention identifies rules which require intention to create a trust rather than some other form obligation, also determining whether the words of proportion are intended to be binding, and rules dealing with the use of the word trust and the willingness of courts to admit evidence to deny the presence of a trust when that word appears.
The expression certainty of subject may cover rules as to whether certain kinds of property are capable of being held on trust, rules as to the identification of property to be held on trust, and rules requiring that the interests of the beneficiaries be stipulated.
An expression certainty of object extends rules governing the ascertainment of beneficiaries of a fixed private charitable trust, the requirements of certainty and administrative workability of discretionary private charitable trusts, and the beneficiary principle, which insists that every trust must have beneficiaries or a valid charitable purpose.
Further, the groups of rules about intention, subject and object may overlap.
However it is these three principles of the need for certainty of intention, subject and object which form the foundation of the law of trusts.
The best way to begin creating a creating a trust is to ensure that it has these three certainties.
If the trust does not have these, the trust will be invalid.
These elements include the three certainties which must be present.
The trust must either be completely constituted or be supported by valuable consideration, where statutes requires, the trust must be created in writing or evidenced in writing, there must also be no latent law, such as the incapacity on the part of the author of the trust, illegality of purpose or other vitiating factor.
In the case of Knight v Knight (1840) 3 Beav 148 Lord Langdale stipulated that no trust will be valid unless the three certainties exist; that is, certainty of words, certainty of subject and certainty of object.
This was a direct statement from the accepted principles of English law at the time.
It also coincided with the efforts of Lewin and others to give structure to the exposition of the law.
It became a foundation for the analysis of the law of creation of trusts.
Three certainties remain useful as a loose grouping of legal things, but they must not be regarded as identifying a set of precise principles, or is indicating that there are only three principles operating in this area.
In fact, the expression certainty the intention identifies rules which require intention to create a trust rather than some other form obligation, also determining whether the words of proportion are intended to be binding, and rules dealing with the use of the word trust and the willingness of courts to admit evidence to deny the presence of a trust when that word appears.
The expression certainty of subject may cover rules as to whether certain kinds of property are capable of being held on trust, rules as to the identification of property to be held on trust, and rules requiring that the interests of the beneficiaries be stipulated.
An expression certainty of object extends rules governing the ascertainment of beneficiaries of a fixed private charitable trust, the requirements of certainty and administrative workability of discretionary private charitable trusts, and the beneficiary principle, which insists that every trust must have beneficiaries or a valid charitable purpose.
Further, the groups of rules about intention, subject and object may overlap.
However it is these three principles of the need for certainty of intention, subject and object which form the foundation of the law of trusts.
The best way to begin creating a creating a trust is to ensure that it has these three certainties.
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