Discretionary Trust Essay Example | Topics and Well Written Essays - 3500 words

Discretionary Trust - Essay Example in that respect are quadruplet requirements of a dedicate, which are capacity perfunctoryity certainty and constitution, each factor is eventful in creating a valid presumption and in order to determine the validity of each tendency within the leave alone these requirements moldiness be fulfilled.This requirement concerns the shaper and beneficiary of the avow whereby any individual discharge buoy progress to a trust if thy have the ability to own any type of keeping, with four exceptions minors whom cannot own land therefore cannot create a trust of land except can be a beneficiary of a trust until the appropriate age any mentally humiliated person under the 1983 Mental Health Act cannot create a trust but can be a beneficiary of a trust corporations can only create a trust if there is a power in their memoranda of association and statutory bodies can only create a trust if there is this power within the enabling legislation. Ther e are also limitations to twain further types of beneficiaries which are non-citizens of Britain whereby they can hold a trust in any property but British ships and aircrafts and trustees who cannot be the sole beneficiary and sole trustee. However the general rule is that any person who has the capability of owning property can create or be a beneficiary of a trust. formalnessGenerally trusts can be created in any manner, because equity deals with the substance of the trust not its formal requirements. Therefore as long as the creator of the trust makes their intentions clear then a trust will be upheld by the courts. However a trust in land is a disparate situation whereby it must comply with the Law of Property Act 1925 section 53(b) and 53(c) for existing equitable interests in land whereby a declaration of trust respecting any land or interest therein must be manifested and proved by writing signed by the person who is able to declare such trust or by his will (LPA 1925 53( b)). It will it is assumed that it meets the formal requirement because there is no information to the contrary however it must be kept in mind that if the formal requirements were not met then it would not be a valid trust, when considering the dispositions certainty and constitution will be the briny focus to ensure the trusts in the will can be upheld. However there may be a problem with the transfer formalities of the shares, which will be discussed with reference to the constitution of the trust. CertaintyThe creator of the trust must make his intentions clear when creating his trust he must make it clear which property is subject to the trust and finally he must identify the beneficiary of the trust. In Wright v Atkyns1 it was find that the words must be imperative, but there does not have to be created with the word trust or obligation2 but sufficient intention must be apparent from conduct and words3. The court will always aim to impose a trust as long as the intention of t he creator is present. In relation to the subject of the trust this also must be clearly stated, whereby the exact size and amount of the subject matter is clear, e.g. the bulk of my estate4 is not clear