Formalities

Wills Act 1837, s 9(a)

A will must be in writing; Signed either by the testator or by some other person provided that it is made in the presence of and at the direction of the testator

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Wills Act 1837, s 9(c)

The signature must be made or acknowledged by the testator in the presence of at least two witnesses present at the same time

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Wills Act 1837, s 9(d)

Each witness must sign his name in the presence of the testator, but not necessarily in the presence of the other witness

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Wills Act 1837, s 9

If these requirements are not satisfied, the will fails and the gift or trust cannot take place

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LPA 1925, s 53(1)(b)

A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such a trust or by his will

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Smith v Matthew (1861)

The writing (e.g. will, correspondence, document in court proceedings) can come into existence after the trust has been declared, but must contain all the terms of the trust

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Wright v Wright (2010)

Thus, there is no prescribed form for this writing to take and it can span more than one document; here, a party’s affidavit supplied the necessary signed evidence

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Gardner v Rowe (1828)

 The absence of writing does not make the trust void, but instead makes it unenforceable by a beneficiary

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LPA 1925, s 53(2)

s 53(1)(b) does not apply to resulting, implied or constructive trusts

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Rouchefoucald v Bousted (1897) (facts)

here, certain coffee estates were transferred to Mr B on understanding that they would be held on trust for benefit of R; trust not evidenced in writing as was required by s 7 of Statute Frauds Act which operated at time; Mr B sold land without R’s k

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Rouchefoucald v Bousted (1897) (held)

Held: as R acted to her detriment on strength of this otherwise unenforceable trust, court felt that failing to enforce trust would amount to a fraud; equity will not allow a statute to be an instrument of fraud, and thus, the court implied a constru

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Hodgson v Marks (1971)

Here, a widow was influenced by her lodger to transfer title to her house into his name on basis that this would prevent his eviction following her death; lodger sold house to 3rd party; CA: lodger had held house on resulting trust for widow, and as

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Bannister v Bannister (1948)

Two cottages conveyed to trustee on basis that beneficiary would be allowed to live in one of them for rest of her life; court would not allow trustee to rely upon absence of writing in these circumstances and invoked a constructive trust

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LPA 1925, s 53(1)(c)

A disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by his agent thereunto lawfully authorised in writing or by will

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LPA 1925, s 53(2)

the formalities do not apply to resulting or constructive trusts

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Re Danish Bacon Co Ltd Staff Pension Fund Trust (1971)

for purposes of writing, two interconnected documents can be read together to satisfy s 53(1)(c)

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Grey v IRC (1960) (facts)

Mr H transferred legal title in 18,000 shares to his trustees (one of whom was Mr G) to hold on express bare trust for himself; shortly afterwards, Mr H orally and irrevocably directed trustees to hold shares on trust for new beneficiaries (his child

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Grey v IRC (1960) (issue)

no doubt new trusts were valid; issue was whether a direction by settlor to existing trustees to hold shares on trust for 3rd party fell within s 53(1)(c); i.e. did the equitable interest pass on the oral declaration or on trustees’ written confirmat

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Grey v IRC (1960)

HL had to consider what amounted to a disposition for purposes of s 53(1)(c); held: a direction to trustees to hold on trust for another fell within s 53(1)(c) as it was a disposition of Mr H’s equitable interest; as the oral direction could not achi

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Oughtred v IRC (1960)

Trustees held shares for benefit of Mrs O for life with remainder to son, Peter; in return for some of mother’s shares, P made oral contract to transfer his interest in remainder to her; subsequently, formal transfers executed transferring these shar

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Oughtred v IRC (1960)

IRC claimed stamp duty on the transfers as they were the documents that effectively transferred the interest; HL had to consider whether a formal transfer of shares following an oral agreement amounted to an assignment for purposes of s 53(1)(c)

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Oughtred v IRC (1960)

Mother: by virtue of doctrine of conversion that operates on a specifically enforceable contract, the equitable interest had already passed to her; thus, the disposition of the equitable interest fell within exception in s 53(2) because of the constr

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Oughtred v IRC (1960)

HL rejected argument; held: contract did not pass the full equitable interest in the shares, and therefore, the doc was subject to stamp duty

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Oughtred v IRC (1960)

Sensible conclusion because if contract was rescinded or specific performance ceased to be available, the entire equitable interest would have remained with the son

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Vandervell v IRC (1967)

Here, a bank held shares on bare trust for Mr V; he directed Bank to transfer shares to Royal College of Surgeons subject to option to repurchase them for £5,000; option was exercisable by the Vandervell trustees; IRC mounted two arguments: 1. Transf

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Vandervell v IRC (1967)

HL: an oral declaration by a beneficiary to trustees holding on bare trust for him to transfer both legal and equitable interest to 3rd party will be effective; however, it was important here that legal and equitable ownership vested in one body (RC

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Vandervell v IRC (1967)

IRC succeeded in establishing that Mr V had not divested himself of equitable interest in option; although legal title to option vested in trustees, no mention made re equitable title; thus, as the terms of trust had not been spelt out, there was a r

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Vandervell v IRC (1967)

Lord Wilberforce: an equitable interest cannot exist in the abstract and must be vested somewhere

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Re Vandervell Trusts (No 2) (1974) (facts)

Mr V finally wanted to rid himself entirely of any interest he had in shares; 1961, instructed trustees to exercise option given to them and orally directed them to hold shares so repurchased on trust for grandchildren; trustees used £5,000 from a tr

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Re Vandervell Trusts (No 2) (1974) (held)

CA: there had been a valid declaration of trust by trustees in 1961 when exercised option and this put case outside s 53(1)(c); this declaration had effect of terminating resulting trust in favour of Mr V

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Re Vandervell Trusts (No 2) (1974)

Lord Denning MR: even if Mr V retained a post-option equitable interest in the shares, he would have been estopped from asserting a claim against his children

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Grey v IRC (1960)

The transfer of the beneficial interest of one beneficiary to another requires writing

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Vandervell v IRC (1967)

s 53(1)(c) does not apply when entire legal and equitable interest in the property passes to a single entity

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Re Vandervell Trusts (No 2) (1974)

the interest under a RT can be disposed of without need for writing

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Levi v Levi (2008)

held: the relinquishment of an interest under a constructive trust did not have to be in writing

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Singh v Anand (2008)

even though not specifically identified as an exception under s 53(2), an estoppel can circumvent the need for writing

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Oughtred v IRC (1960)

re a contract to transfer both legal and equitable title in e.g. land or shares in a private company, the constructive trust that arises does not pass the full beneficial interest to the purchaser

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