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Express Trusts

Express Trusts

An express trust is one that is intentionally declared by the creator of the trust, who is known as the settlor, or, if the trust is created by will, the testator. Essentially, the legal owner holds the property on trust for a specific beneficiary. There are two categories of express trusts:

1. Executed and Executory:

a. An executed trust is one in which the testator or settlor has marked out in appropriate technical expressions what interest are to be taken by all beneficiaries.

b. An executory trust is when the execution of some further instrument is required in order to define the beneficial interests with precision. The property is immediately subject to a valid trust, but it remains executory until the further instrument is duly executed.

i. The distinction between the two is such that executed are governed by strict rules of construction while executory are construed more liberally.

ii. Appear most commonly in marriage articles, providing certain property to belong to one of the parties and settled upon them and their children

2. Completely and Incompletely Constituted Trusts:

There cannot be a trust unless the trust is completely constituted

Thus, this is simply a rule that if it is incompletely constituted the trust is void

A trust is only valid if the title to the property is in the trustee and if the trusts have been validly declared

Requirements to create an express trust:

1. There must be an intention to create the trust. Meaning, the legal owner must make it clear that the land is for the benefit of another.

2. Must be in writing and signed by the person declaring the trust

3. There must be a transfer of legal title to a trustee (note: this only applies if the legal owner intends to create an express trust for a third party)

4. The trust must not offend the rule of perpetuity

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