Analysis of Trust and Equity in Law - Case Study Example

In order to understand the term trust well, one has to understand some technical terms such as resulting trusts, an express trust, fiduciary, fixed trust, beneficiary, charitable trust, personal remedies, and constructive trusts. Trust is always a unique creation of the common law. When a trustee is transferring property to a beneficiary he may be bound by numerous duties which may be either imposed by general principles of equity, by statute, or by the trust instrument and there are always serious impacts on the trustee who may either neglect his duties or breach the terms contained in the contract.

When establishing trust, there must be certainty and clarity. It is very necessary to be clear as to who the property is transferred. There should also be the establishment of the rights of the beneficiary with certainty so that in case the trustee fails to carry out his duties, the trust should be enforced. There must be different types and levels of formality when dealing with different and various types of property. It is very important for the trustee to be invested properly with the title to the trust property that he wishes to transfer.

This is because he is the owner of the property. Unless the trustee does so, the trust is considered incomplete and the beneficiaries may have no claim over the property. This fact is well illustrated in the case of Milroy v Lord (1862). In special instances where the property has to be transferred to the beneficiary, the trustee needs to closely examine the particular type of trust that he wants and wishes to transfer so that he can determine what needs to be done in order to transfer the property effectively.

If the trustee of the property has a title, there is no need for any formality in the transfer. For an effective declaration to take place is only some clear evidence of an irrevocable and present declaration of trust. This evidence may take any form. It is a condition that for a declaration of a trust to be effective, there must not be a failed attempt by the owner of the property to create the trust by transferring the property to the beneficiary. In the case, of Paul v Constance [1977] 1 WLR 527, Mr.

Constance who was deceased was operating a bank account in his own name. In many instances, he heard saying to his de facto partner Mrs. Paul that the money he had was his as well as hers. By that time, Mr. Constance was still legally married to Mrs. Constance, who was the defendant in this case. Constance later died intestate and all his assets including the bank account passed to his wife. With this statement, it was not sufficient enough that there was a trust which had been created.