Certainty Requirements for Formation of Express Trust

Australian Commercial and Corporation Law

Table of Contents
Task 1.........................................................................................................................................3
Task 2.........................................................................................................................................4
References..................................................................................................................................6

Task 1
Research Question - Are all the certainty requirements are being satisfied for the formation
of an express trust?
Relevant Law - The enforceability of an express trust depends on the proof of certainty in
three aspects that include intention to create trust, subject matter and objects. Along with
satisfying three certainty aspects and not invading public policy prohibitions regarding
formation of trusts, it is essential that an express trust must have been created validly
(Cambridge University Press , 2018). Such a trust must be declared in a proper manner and
title to the property of the trust must be vested in the trustee in a proper manner. In addition to
it, some of the trusts must be following the statutory formalities. Unless these requirements
are satisfied, it will not be considered as enforceable or valid relying on the relevant statutory
provision. The express trust is created when the settlor creates a trust affirming himself or
herself as a trustee of property or transferring to another trustee (Reuters, 2019). However,
express trust is formed as per the purpose of the settlor. The interpretation of the intent to
create an express trust may be made by court, if it is decided that parties want to form
equitable interest in third party and trust relationship is considered as suitable reason to create
that purpose (Austlii, 2014). Until now, the trust is enforced when a person accepts property
based on insufficiently evidenced trust. The Court of Appeal in Rochefoucauld v. Boustead
[1897] I Ch. 196 has also considered it as an express trust (Law Teacher, 2018).
Research Methodology - For the research purpose, relevant case law examples and relevant
data will be obtained from the online sources in order to address the issue.
Analysis - As the formation of express trust involves three certainties i.e. certainty of
intention, subject matter (property of trust) and object (beneficiary or purpose). Basil
Electrical Co. Pty Ltd. has 1000 shares in all, out of which, Basil has announced himself as
the trustee of 5% of the shares of the company without any further documentation of the