| 释义 |
constitution of trusts
A trust is constituted, and becomes enforceable, when legal title to the trust property is transferred to the trustees. The rules of constitution are the same as those for perfection of a gift (see perfect gift), the distinction being that the donee of a gift receives the property absolutely, whereas the trustee receives legal title to the property subject to the trust obligation. The common law insists that everything possible is done to transfer legal title to the trustee, but equity adopts a slightly more lenient approach (Milroy v Lord (1862) EWHC J78)—the settlor must do everything in his power to transfer the property (the “every effort” doctrine or the Re Rose">rule in Re Rose). Equity is unwilling to assist would-be beneficiaries, who are usually volunteers (applying the maxims “equity will not assist a volunteer” and “equity will not perfect an imperfect gift”). However, there are some exceptions to the rules of constitution—most notably under the Strong v Bird">rule in Strong v Bird, in cases of donatio mortis causa and under the doctrine of proprietary estoppel. More controversially, in Pennington v Waine [2002] EWCA Civ 227, [2002] 1 WLR 2075 an exception was allowed on the grounds that it would be unconscionable for the donor to go back on her promise of a gift of shares. When an owner of property makes a self-declaration of trust, the trust property does not have to be transferred, but it can be difficult to establish an intention to create a trust (Jones v Lock (1865) 1 Ch App 25). It is sufficient to constitute a trust if property is transferred to one of a number of trustees or if a settlor makes a self-declaration of trust but does not transfer legal title to the other trustees (T. Choithram International SA v Pagarani [2001] UKPC 46, [2001] WLR 1154). |