Express trusts

This expert guidance note provides comprehensive coverage of express trusts, a fundamental concept in trust law where a settlor explicitly creates a trust arrangement. Practitioners must understand the critical legal requirements for valid trust creation, including the essential “three certainties” of intention, subject matter, and object, as well as the nuanced need for writing in certain cases involving land interests.

Topics Covered

• Charitable trusts
• Testamentary trusts
• Taxation of trusts
• Nature and creation of trusts
• Standard discretionary trust clauses
• Resettlement of trusts

Essential Insights

• Assess the implications of the writing requirement for trusts involving land and its complex jurisdictional variations.
• Evaluate the “three certainties” as foundational criteria that determine the validity of an express trust.
• Consider the strategic use of variation powers in trust deeds and the court’s role under state legislation.
• Recognise how courts balance the expediency of trust administration with strict adherence to trust deed powers.
• Understand how federal laws, including bankruptcy and family law, intersect with trust administration.
• Explore critical case law shaping the creation, variation, and termination of express trusts across Australian jurisdictions.