Nature and creation of trusts

The guidance note on nature and creation of trusts offers an authoritative overview of trust law fundamentals, essential for practitioners navigating fiduciary relationships and trust structures in Australia. This document explores the legal framework underpinning trusts, highlighting key legislative influences and complex equitable principles that shape trust creation and administration.

Topics Covered

• What is a trust?
• Meaning of “trust” under legislation
• Types of trusts
• The trust relationship
• Essential elements of an express trust
• How is a trust created?
• What law governs the creation and administration of a trust?
• Variations of trust by the court

Essential Insights

• Understand the fiduciary obligations that uniquely bind trustees to trust property and beneficiaries.
• Assess how state and territory legislation intersects with equitable principles to define trusts.
• Explore the distinct categories of trusts, including express, resulting, and constructive trusts, and their nuanced applications.
• Recognise the significance of the “three certainties” and additional elements critical to validly creating an express trust.
• Consider the legal complexities when trusteeships transition or vary, including court-ordered modifications.
• Identify jurisdictional challenges related to the proper law governing trusts and enforcement across borders.