Formal Requirements to Create an Express Trust

Intervivos express trusts for property do not need to be in writing- express dec intended to be final and binding is sufficient.

Writing by a trustee (rather than the settlor) was sufficient evidence of the existence of a trust. Here, grandmother had transferred property to daughter who wrote letter to son that he and sister to inherit property equally.

Equity will not permit a stat to be an instrument of fraud. Couldnt rely on stat requirement for writing to ignore oral evidence of a trust.

Requirements for incorporating a doc by reference: 1) Doc must be in existence at time will signed 2) Must be referred to in will as being in existence 3)Must be described with sufficient particularity to enable it to be identified.

Made an inventory of silverware after the will was signed. Could still be incorporated however, due to a codicil made after the inventory.

Requirements for secret trusts: 1) Intention 2) Communication to secret trustee 3) Acquiesence by that trustee All must be met while inter vivos Example of a half secret trust: "for the purposes indicated by me to them". Must communicate terms before signing of the will as the Wills Act is engaged

Intended beneficiary had not forfeited his legacy by witnessing the will as the secret trust exists independently from the will

Standard of proof required to establish a secret trust is BOP

Communication can be made after will is signed in the case of fully secret trusts (as long as accepted before death)

Left property to Rev K on terms to be disclosed later. Held, couldnt vary the will once signed with unattested words. Rev to hold on resulting trust for estate ( don't get a beneficial interest). Also authority for HS trusts cannot contradict the will. NZ leading case followed this

WRT FS trusts, terms can be revealed after the willmakers death, as long as the trustees have the means of finding out the terms (e.g. a sealed envelope).

Failed on certainty of objects and intention, Hammond J thus suggesting ST are express trusts.