There are many different definitions of what a trust is.

A trust is a legal (equitable) arrangement

by which: one person, called settlor/donor inter vivos) or testator (on death), transfer title in a

property (whether realty or personalty); to another person(s) called the trustee(s) the person(s)

responsible for administering the trust). In doing this the settlor/testator, through the trust

instrument, (or the courts in certain instances): directs the trustee(s) to hold or use the property;

for the benefit of certain persons (donees under an inter vivos gift) – beneficiaries in inheritance

on death); or for the promotion of certain purpose.

If the trustee(s) undertake (s) to carry out directions of settlor/ testator (or of court) then they

become subject to a binding legal obligation which equity will enforce. 1

Another definition is; an express trust is one intentionally declared by the creator of the trust,

who is known as the settlor, or, if the trust is created by will, the testator. 2 Four requirements

are needed for an express trust to be valid. Capacity, formalities, the three certainties and

constitution. There must be compliance with the three certainties; certainty of intention in which

the settlor shows intention to create a trust.

Capacity to create a trust goes conjointly with the ability to hold or dispose of legal or equitable

interest in a property.

Two identifiable instances where parties lack capacity to create a trust are minors under the age

of eighteen in most jurisdictions and the mentally incapacitated. Children cannot hold a legal

estate in land and any land which a child receives must be through a trust.

1
Jacqueline Martin & Chris Turner The Facts at your Fingertips .. Equity & Trusts 2 nd Edition (first published 2003,
British Library Cataloguing in Publication Data)
2
Jill E Martin ( first published 1935, by Thomas Reuters (Legal) Limited)
Edward v Carter provides that “settlement made by a child is voidable; he may repudiate it
3
before or within a reasonable time after attaining the age of 18.

In Strout et al v Barker et al, a father directed that under his Will, his children will inherit his

residuary estate which must be divided equally among them. The issue was whether the

testator’s son was able to benefit from his father’s estate although he was a minor when he

signed.

The principle is where an infant makes a contract it is generally voidable at the instance of the

infant. There are exceptions to the rule where the contract is made for the benefit of the infant.4

Strachan J states if an infant makes a settlement which if made an adult, would bind the property

itself, it is not void but voidable, and unless he repudiates it on or shortly after attaining his

majority …5

The defendants argument was that the disposition by George being a minor at the time is void,

the arguments were based on the law article 3 of the 13th edition, 1979 Underhill’s Law and

Trust under the caption ‘Minors’. It states “capacity to settle is treated in the same way as

capacity to contract, thus settlements that are obviously prejudicially will be wholly void.

George’s entitlement will be reduced as a result of him joining in a direction which made a

disposition which was prejudicial to his interest”.

Halbury’s Law of England , edition volume 17, Para 286 provides “an infant can dispose of

property , by sale, devise, or gift except where the alienation is clearly prejudice to his interest”.

3
Jill E Martin ( first published 1935, by Thomas Reuters (Legal) Limited) Edward v Carter (1893) AC 360

4
Strout et al v Barker et al BS [1993] SC 105
5
A view put forward by Sir Leonard contends that all settlements made by an infant are at

common law not void but only voidable. The infant must renounce within a reasonable time of

attaining his majority. For support he points to Underhill's Law of Trust and Trustees the 7th

edition Chapter 111, under article 12 which, so far as relevant, reads:-

"Broadly speaking, an infant cannot effectually dispose of property, and, therefore, cannot make

an irrevocable settlement.6

The Court must look at the whole contract, having regard to the circumstances of the case, and

determine, subject to any principles of law which may be ascertained by the cases, whether the

contract is or is not beneficial...".

From this, it is plain, as one would expect, that it is not enough to find that a contract contains

provisions which are obviously prejudicial to the infant, the question is rather, viewed as a

whole, is plainly prejudicial to him.

Having examined the arguments and the cases which the plaintiff and defendants put forward, it
was decided that the agreement was for the benefit of the infant and as such should be rendered
valid.

6
Strout et al v Barker et al (BS 1993 SC 105)
The ability of the mentally incapacitated to create a trust is limited by the size of the gift and the

relationship with assets owned. The degree of understanding required varies with the

circumstances of the transaction. If the subject matter and value of the gift are trivial as it relates

to the donor’s other assets a low degree will suffice; if on the other hand its effect is to dispose of

the donor’s only assets of value and the pre-empt the devolution of his estate under his will or his

intestacy, the degree of understanding required is at a high level. The donor must understand

the claims of all potential donees and the extent of the property to be disposed.

Where there is undisputed evidence of a failing mind and also of knowledge that the beneficiary

has contributed to the instructions contained in the will, the court will require undeniable

evidence that the testator was aware of the content of the documents which he signed. The

courts must be satisfied under beyond the shadow of a doubt that the testator understood what he

was doing and his effect.

 the document was explained

 the testator knew the extent of his property and did comprehend and appreciate the claims

of his estate to which he ought to give effect

In the case of Cox v Cox Philbert et al the formalities necessary to execute were adhered to

however, the circumstances surrounding the preparation and execution of the Will lead to a

grounded suspicion that the Will did not express the intentions of the deceased. The execution of

the Will was as a result of undue influence of the claimant. It was declared null and void as the

courts have wide powers to deal with the property and affairs of persons who lack capacity to
make decisions. The principle for the court to consider is, what the person will be likely to do if
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he was not subject to the disability.

7
Cox V. Cox, Philbert And Brown
Formalities

In the creation of an express trust the necessity for formality does not necessarily arise in general

terms. In the analysis of an express trust, the law examines the intention of the settler to create a

trust and whether the certainties of subject matter and the objects are met.

Land inevitably requires special formalities. In a trust of land the law requires that the

declaration of trust land must be evidence in writing. If it is a trust of personality ( inter vivos)

no formalities are required. Where the trust is already created and the beneficiary wants to

dispose of his equitable interest, the law requires that the disposition should be in writing.

Where there is no disposition between the equitable interest in land and personalty, writing is

required in disposition but not declaration. Section 53(1)(b), The United Kingdom law of

Property Act 1925 provides that:

(b) “a declaration of trust, respecting any land, or any interest there in, must be manifested and

proven by some writing, signed by the person who is able to declare such a trust or by his will”8.

The respective property act of the Caribbean countries mirrors that of the United Kingdom Law

of Property act 1925. S(60) (2) of the Barbados Property act, states “a declaration of trust,

respecting any land, or any interest there in, must be manifested and proven by some writing,

signed by the person who is entitled to declare such a trust or by his will”.

8
Jill E Martin, Modern Equity (first published in 1935, Thomas Reuters (Legal) Limited 82
In a trust created by a Will any disposition or any interest in land personalty, that interest is

intended to take effect after death and have effect only if it is done by Will. This is valid, only by

writing and signed by the testator, in the presence of two attesting witnesses.

A disposition occurs only when an equitable interest exists independently of the legal interest.

The statue requires that the disposition should be in writing to be effective. The statue will not

apply if the legal title and the equitable interest are merged.

In the case of Thomson v Thomson9 the requirements to create a trust was established. The letter

to the mortgator dated the 20th April, 1996, confirmed his intention to form a trust for the benefit

of his six children. It also satisfied the statue, that they must be evidence in writing when

disposing of equitable interest when pertaining to land. The property which was clearly

identified which represented the subject matter. It was situated at No. 19 Alcazar Street, St Clair.

The objects were the six children who were to share in the trust that was established.

Certainty

For a trust to be formed, the settlor or testator must make his intention absolutely clear. The trust

must be free of any ambiguity in order that the trustee be able to carry out all instructions and for

the court to carry out all instructions. In addition to the statutory formalities creation of an

express trust depends on the presence of the three certainties.

9
TT [2011] HC 88
  Certainty of intention – words creating a binding obligation

 Certainty of subject matter – property

 Certainty of objects – the beneficiaries

The words must accurately represent the intention of the settlor or the testator to eliminate any

doubt as to their true intention. In the case of Kinsatie v Singh 10 the language used clearly

ascertains the intention to create a trust, “to dispose of as he thinks for the benefit of himself and

his children”, was not of a precatory nature, but imperative and created a binding trust to the

extent of one-third of the property, in so far as the respondent is concerned.

The duty of the court is to interpret the will before them as a whole, in order to ascertain the

intention of the testator from the words he has used and give effect to the legal consequences of

that intention.

When contrasted to words used in other cases by testators like in Lamb v Aeames 11 the words

“be desired here at or before he death to give the same unto and among such of his relations as he

should think most deserving and approve of,” were held not to create a trust. In re Adam @

Kensignton 12, where the words used “in the fullest confidence that she would do what was right

as to the disposal therefore of his children, either in the lifetime or a will after decease. It was

10
GY [1974] CA 30
11
[ 1871] 6 LR. Ch 597
1884, 27CH. D 394

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held that the widow took absolute interest in the property, unfettered by any trust in favour of the

children. In Pierson v Garnet, the words were 13 “it’s my dying request.” The court interpreted

the words as giving rise to a trust.

The requirement of certainty of subject matter from the case, certainty of intention was met. The

property was for the benefit of himself and the children who are the beneficiaries on the trust.

The requirement of certainty of subject matter was met, it was the property located at No 15,

Cooper Land, New Amsterdam. Thirdly the certainty of object was met the beneficiaries were

the husband and the two children.

Similarly in the case 14 Re Codrington (deceased and United Society for the Propagation of the

Gospel the Attorney General) this issue of whether the testator devise of property to a charitable

institution created a trust. It was established that it was a trust as it satisfied the requirement of

the law. The intention of the testator to create a will must be present, as well as the three

certainties for it to be a valid trust. Applying the rules that the will must be read according to the

statue of time. Secondly that the language must be analysed in the light of the surrounding

circumstances which the testator knew when the will was construed and examining the will in its

entirety, it was established that the bequest of the will met the three certainties. Certainty of the

subject matter which was Codrington’s estate. Certainty of the intention, the testator intended

that the society should hold the estate in trust to maintain a residential intuition of higher

13
209 ER 20
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learning…bounty. The certainty of objects was inferred from the charitable gift in favour of the

beneficiaries, coming from the testators bounty.

Constitution

A trust must be completely constituted for it to be valid. It can be complete if the settlor is also

the trustee. If there are different trustees, the property must be passed to the trustee, that is the

legal title and the equitable interest to the beneficiary. The concept ‘completely’ means that the

settlor does not retain any right to the trust property. The transfer of property are by specific

methods:

 Chattel – delivery

 Cheques – endorsement

 Land – conveyance

 Shares – shares transfer and registration

Land requires that the vesting of the title to the trust property must be evident in writing.

Whether a trust is complete constituted, the question to be answered is whether title of subject

matter is vested with the trustee. The settlor has to fulfil the relevant statues and common law

rules as it relates to transferring of legal title to land or property. In the case the settler must
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register the title in the name of the trustee and adhere to the relevant rules of shares. The courts

recommend that there are three ways to give something voluntary:

 transferring the property to oneself

 transferring the property to a trustee to hold for another person

 declaring oneself as trustee

15
Milroy v Lord [1862]
The settlor must satisfy the test for the express declaration of a trust, as well as complete the

transfer of legal title for a trust to be completely constituted.

There are exceptions to the test, which indicate that the test for proper constitution is whether

the settlor has done everything he or she was to do to complete the transfer? If the settlor has

done that but there is a flaw on the operation of the law the trust may still be viewed as

completely constituted in equity. The question was further articulated whether the donor has

done sufficient to enable the legal transfer to be effective without further action on his part.

If a settlor intends to give a gift of share and executes a proper transfer that is what is

required of him (execute a share transfer) the company is required to enter the transferee

name in the register as the new legal owner but did not complete there will be no valid

transfer of the shares at law, but in equity as soon as the shares transfer are lodged the

transferee becomes the equitable owner of the shares.

In Re Desume. The donor made a settlement comprising shares in two private companies, in

which he had majority shareholding. Executed forms of transfer of the shares in favour of

the trustee but he died before the trustee could be registered as legal owner. This issue was

whether as settlor, he had done everything in his power to transfer the legal title to vest an

equitable title in the trustee. (The principle in Re Rose) it was held he did not do everything

in his power to see that the transfers were properly transferred, since he had a controlling

interest in the company. When contrasted to the ruling given by the Privy Council, which
cast aside the precedence by holding that the settlor was himself one of the seven trustees, the

transfer was effective.