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5.1.1 Express and Implied Trusts - Introduction

Introduction

Welcome to the first lesson of the fifth topic in this module guide – Trusts of Land: Express and Implied Trusts.Express trusts are a device of disposition which, in land, creates a purely nominal (‘legal’) title that vests in the person named by the testator as the trustee. The title is purely nominal in that the property vested in them is not for their benefit, but is instead for the benefit of another, namely the beneficiary. These terms of trusteeship are made explicit in the testamentary disposition of the land in question, and so the trustee must act according to those terms. A breach of those terms is regarded as an affront to the conscience of the court of equity, and therefore a trustee can be required by the court to comply with the express terms of the trust.

Although there is an insistence on the need to uphold formalities and avoid complications following informal creation of trusts of land, nevertheless there are exceptions to the need to comply in an unyielding manner to ensuring all trusts are put in writing. Hence, unlike with express trusts of land, implied trusts of land are not required to be evidenced in writing and do not require the signature of the settlor (Law of Property Act 1925, s.53(2)). In the context of implied trusts, there are two types of trusts: resulting trusts and constructive trusts.

At the end of this section, you should be comfortable understanding the difference between express and implied trust. You should also be able to understand what express and implied trusts are and the legal rules governing them.

This section begins by outlining what an express trust is and formalities. It then goes on to discuss implied trusts: resulting trusts and constructive trusts. There is an in-depth discussion of the legal rules concerning both types of trusts.

Goals for this Section

  • To understand what an express trust is.
  • To know what an implied trust is.

Objectives for this Section

  • To be familiar with express trusts and formalities.
  • To be able to appreciate the difference between the two types of implied trusts.
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