To create an express trust, there must be certainty of intention, subject matter, and beneficiaries. In the absence of such certainty, will the trust fail?
Where not provided in a trust deed, the rules of equity, together with legislative instruments, may provide a settlor with the ability to revoke a trust, embolden a trustee with powers,1 duties and liabilities, and outline the rights of beneficiaries under a trust. However, before seeking to administer or vest a trust, an often-overlooked question is: has the trust in fact been created?
In practice, the question of the existence of a trust often arises where:
the parties have been incorrectly identified in a trust deed;
the deed was not executed;
assets comprising the fund of the trust have not been registered in the trustee’s name;
the settled property has not been transferred;
the terms and provisions of the trust as contained in the trust deed are inadequate, uncertain and/or lack clarity; or
the trust deed has been lost.
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