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4 - Creating the Trust – I

Graham Moffat
Affiliation:
University of Warwick
Gerry Bean
Affiliation:
Phillips Fox, Melbourne
John Dewar
Affiliation:
Griffith University, Queensland
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Summary

Introduction

The centrality of intention

When deciding how to give away property the owner of assets has a choice between outright gift or a gift in trust. Stripped to its essence the private trust, to reiterate a point made earlier, is a gift projected on the plane of time. However, the limited functional similarity of these two forms of gift, the absolute gift and the gift in trust, must not disguise the fact that they are conceptually distinct.

Thus there are gifts, which are Legal, and, then again, there are trusts, which are Equitable. These are two distinct arrangements, not simply two types of benefaction, although it is not clear whether we treat them as distinct because we sharply distinguish wanting to make a gift to another, on the one hand, from wanting to make a trust for another, on the other hand, or because we pay attention to the historical distinction that gifts were creatures of Law, and trusts, creatures of Equity. But distinct they are, and so we think that there are separate requirements peculiar to each …

(M Pickard ‘The Goodness of Giving, The Justice of Gifts and Trusts’ (1983) 33 U Toronto LJ 381)

In practice also there will usually be no difficulty in distinguishing the two forms since trusts are commonly created in writing, usually by deed, wherein the donor designates another person or group of persons as trustee(s). But neither writing nor the appointment of others as trustees is essential.

Type
Chapter
Information
Trusts Law
Text and Materials
, pp. 112 - 195
Publisher: Cambridge University Press
Print publication year: 2005

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