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r to fully understand the trust and its principle application it is necessary to know what a trust is, the different types of trust and the specific requirements for the creation of a trust.
A trust can be either express or implied.3 The express trust entails a purposeful creation while the implied trust occurs by operation of law in cases where an unconscionable outcome would occur.4 The implied trust can be either constructive or resulting.5 The resulting trust occurs where property transferred reverts to the settlor or his/her estate. A resulting trust can also be established to fill a “gap in ownership” or dispose of “surplus of trust funds” after the disposition of the trust property.6 Quite often a resulting trust follows from a trust which is settled by virtue of a condition precedent which fails.7
A resulting trust may also be implied by law where it is necessary to interpret and give effect to the settlor’s intention.8 In such a case, the settlor of the property is presumed to be the equitable owner of the property 9. When property is purchased in the name of a third party this may obviate such a presumption. For instance, an individual purchases stock and directs the vendor to transfer the stock to a third party. It is naturally presumed that the stock is held upon trust for the purchase of the stock.10
On occasions when a trustee abuses the confidence reposed in him by realizing an unauthorised profit derived from the trust property, or becomes unjustly enriched at another’s expense, the court may impose a constructive trust on the party who acted with impropriety.11
In Broadman v Phipps  2 AC 46 the court imposed a constructive trust in a situation where an attorney in the course of representing a trust happened to come across some confidential information which he used for the purpose of acquiring company shares that were partly owned by the trustees. The company did well and made significant profits as a result of the
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The conventional observation is that non-charitable purpose trusts are void. In “Re Endacott”1, Lord Evershed M.R viewed that “a non-charitable trust under English law cannot be enforceable as it is not having ascertainable or quantifiable beneficiaries.” In “Bowman v.
The word “charity” is connoted from a Latin word “caritas,” which means care. Generally, a charity signifies generosity towards needy and poor people. However, the legal meaning of the word, “charity” is much wider. It includes other purposes for the welfare of the community as a whole.
The requirement of certainty of beneficiaries operates differently with discretionary as opposed to fixed trusts. Further trusts for non-charitable purposes are normally invalid. The only type of trust which does not require ascertainable beneficiaries are charitable trusts: Re Vandervell's Trusts (No 2) 3.
This was also included into the Land and Property Act of 19251 by way of Section 51(3) (c) which is directed towards the prevention of oral dispositions of equitable interests in property and decrees that in order for a disposition to be effective, it must be in
Having established that the three certainties need to be present to make the trust valid it is necessary to look at whether the declarations made by Margaret can be read as an intention to create a trust. For a trust to be fully constituted the intended separation between the legal and equitable title must have occurred.
With trust there is the creation of equity.
Equity can be described as being the fairness or justice.1 This is a body of law that evolved in the courts of chancery. The law of trust is one of the most crucial creations of the court of Chancery, which is responsible
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