Implied trust Definition

GLOSSARY

What does Implied trust mean?

A trust declared by a party not directly but by implication

An implied trust arises in circumstances where it is necessary for an inference to be drawn from the available admissible evidence that this was what the settlor intended. The expression is also used to distinguish constructive and resulting trusts from express trusts.

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Nature and classification of trusts—the nature and classification of trusts

Nature of trustsThe trust conceptTypically, the settlor is the original owner of property and creates a trust by conveying it to one or more trustees and manifesting an intention that it is to be held on trust for one or more beneficiaries or for the accomplishment of a particular purpose. The trustees become owners at common law and hold the property or rights in trust for the beneficiaries (cestuis que trust) or that purpose. The trustees come under an equitable obligation enforceable by the beneficiaries. No trust is created, whatever the intention of the settlor, unless legal title is vested in the trustee (this is known as constituting the trust).DefinitionWhile the trust concept is recognisable, a definition is not so easy.The definition set out in The Law of Trusts and Trustees 10th edition by Underhill and Hayton was adopted by the Court of Appeal in Green v Russell per Romer LJ: 'A trust is an equitable obligation, binding a person (who is called a trustee) to deal with property over...

Creation of trusts—by declaration

Express lifetime declarationsWhere a trust is created by an express lifetime declaration, the settlor simply declares that they hold the trust property on trust for the specified person or object absolutely. The settlor must be unequivocal in their declaration and should communicate the terms of the trust to the beneficiaries. The following must be present:•there must be property capable of being subjected to a trust•the trust must meet the requirements for formal validity•the terms of the trust must be sufficiently certain (essential validity)•the purpose of the trust must not be unlawfulEvidential requirements—personaltyProvided the conditions for the essential validity of the trust are fulfilled, a declaration of trust in respect of personalty (other than an equitable interest) may be declared:•in writing•orally or•(in exceptional cases) by conductThere are no legal requirements as to the form of a declaration of trust of personalty. However, it is good practice to ensure that all the terms of such a trust are contained in a written instrument in order to establish the terms of the trust...

Discover our 12 Practice Notes on Implied trust

An individual is the sole freeholder of residential premises. His brother occupied the premises from 1983 until his death in 2007, and since then his sister in law has occupied. No rent was ever paid by his brother or by his sister in law. Is the sister in law entitled to any rights or statutory protections in respect of their occupation?

An individual is the sole freeholder of residential premises. His brother occupied the premises from 1983 until his death in 2007, and since then his sister in law has occupied. No rent was ever paid by his brother or by his sister in law. Is the sister in law entitled to any rights or statutory protections in respect of their occupation? Trespasser or oral tenancy It seems unlikely that the sister in law is in occupation as a: • trespasser (albeit a tolerated one) given the circumstances and length of her occupation; or • under a lease on the basis that leases can only be made orally when: ◦ it is for a term not exceeding three years ◦ it is not of an incorporeal hereditament ◦ it is to take effect in possession, and ◦ it is at the best rent reasonably obtainable without taking a fine See Law of Property Act 1925, ss 52 and 54 and our Q&A A landlord let a property to tenants on...

Is a police officer protected from prohibited conduct under the Equality Act 2010? Does the employer’s refusal to agree to a police officer’s ill-health retirement amount to prohibited conduct?

Is a police officer protected from prohibited conduct under the Equality Act 2010? Does the employer’s refusal to agree to a police officer’s ill-health retirement amount to prohibited conduct? The Equality Act 2010 (EqA 2010) provides protection against discrimination and other prohibited conduct relating to protected characteristics which people may possess. Different types of event may give rise to a claim before, during and after the employment relationship. Is a police officer protected under the EqA 2010? The EqA 2010 recognises a wide set of circumstances as employment. 'Employment' in this context covers employment under a contract of employment, a contract of apprenticeship, or any other contract personally to do work, crown employment, employment as a relevant member of the House of Commons staff and employment as a relevant member of the House of Lords staff. For further information, see Practice Note: Employment events which give rise to discrimination, harassment and victimisation claims—The meaning of 'employment'. Most regular police officers hold the office of 'constable'. As...

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Undue influence—court finds equitable doctrine applies to Mutual Wills (Naidoo v Barton)

Private Client analysis: The High court was faced with the decision whether a 25 year old mutual Will agreement that a vulnerable couple entered into was binding, and prohibited a subsequent Will from being valid after one of the parties had died. When deciding if the mutual Will was procured by undue influence the court considered whether the equitable doctrine laid down in Royal Bank of Scotland v Etridge was the correct test or whether the testamentary doctrine applicable to Wills would apply. Written by Ashleigh Wong, Associate and Kelly Geter, trainee solicitor at Gardner Leader LLP.

Private Client weekly highlights—2 July 2020

This week’s edition of Private Client highlights includes: (1) The Divorce, Dissolution and Separation Act 2020 which came into force on 25 June 2020; (2) Bhikhi v The Commissioners for HMRC, in which a transfer of property to a mortgagee was held to be a disposal for CGT purposes; (3) Finance Bill 2020 and analysis of new clauses published on 25 June 2020; (4) Re JB, in which the Court of Appeal considered the question of consent in the test for capacity to engage in sexual relations; (5) Archibald v Alexander, in which the court upheld an oral agreement to share ownership of a house; (6) Analysis of the Corporate Insolvency and Governance Act 2020; (7) Updated guidance from the Charity Commission for charitable companies and Chief Information Officers on new laws affecting members’ meetings and insolvency; (8) HMRC publishes detailed guidance on the application of DAC 6 in the UK, and (9) the Chancellor’s announcement that he will deliver a summer economic update on 8 July.

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