By Iwobi, Andrew Iwobi
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Extra resources for Essential Trusts, 3rd Edition (Essential Series)
The express-constructive trust debate is especially relevant where the subject matter of a secret trust is land. The issue at stake is whether the communication of the trust must be evidenced in writing in accordance with s 53(1)(b) of the LPA 1925. Such writing will be needed if the trust is express, but not if it is constructive. The position has not yet been decisively resolved by the courts. However, it has been held in Re Baillie (1886) that a HST was unenforceable in the absence of written evidence.
This is consistent with the notion that secret trusts are enforced in order to prevent fraud. Others such as Sheridan (1951) 67 LQR and Hayton and Marshall suggest that HSTs are undoubtedly express trusts, whereas FSTs which have been traditionally associated with the fraud theory can properly be regarded as constructive trusts. The express-constructive trust debate is especially relevant where the subject matter of a secret trust is land. The issue at stake is whether the communication of the trust must be evidenced in writing in accordance with s 53(1)(b) of the LPA 1925.
The common law attitude to the enforcement of covenants means that where A and B are parties to a voluntary deed under which A covenants to transfer property belonging to him to B, but fails to do so, B may recover damages against him (see Cannon v Hartley (1949)). The position is less certain where a settlor, S, covenants to transfer property to a trustee, T, to hold on trust for B. It has been decided in Re Pryce (1917); Re Kay’s Settlement (1939); and Re Cook’s ST (1965), that where such a covenant is not performed, B cannot compel T to bring an action for damages, while T, for his part, will be directed by the court not to do so.
Essential Trusts, 3rd Edition (Essential Series) by Iwobi, Andrew Iwobi