Introduction

Express trusts are a form of wealth management. Ownership and management of the property is split from the enjoyment of the property. In its simplest terms, the trustee manages the property but not for his own benefit. Express trusts emerged from medieval ‘uses’ of land and have been recognised and enforced in common law systems for over seven hundred years. They are no longer limited to land; any form of property can be held on trust.

Today, the express trust is used for a wide variety of purposes, both private and commercial, where it is necessary or desirable to split management from benefit. These include:

• Managing family wealth under a family trust;

• Managing property for those unable to do so themselves, such as children or those under disabilities;

• Group investment trusts, such as unit trusts;

• Trading trusts;

• Trusts set up under wills;

• Superannuation trusts, which operate for the benefit of large numbers of members; and

• Trusts used as security for borrowings.

Almost all Australians over the age of 18 will have some involvement in a superannuation trust. Many kinds of trusts are now largely regulated by statute but all are based on the equitable principles for controlling trusts. Except where otherwise stated, we will use the simplest form of express trust as an example – that set up under a will for the benefit of the testator's relatives.