A trust is where the legal title to property is held on behalf of and for the benefit of others (“beneficiaries”) by the transferor of that property or others he/she appoints (“trustees”).
The Trustees are obliged to look after that property on behalf of the beneficiaries until such time a stated event occurs, whereupon the Trustees have to hand over the ownership of that property.
Essentially trusts fall into one of two categories.
- First where the trustees are obliged to pay the income to or give the benefit of trust property to the beneficiary (interest in possession settlements).
- Secondly those trusts which give the Trustees a discretion to allocate the income or benefit of the property as they see fit to the beneficiaries (accumulation and maintenance settlements, full discretionary settlements and charitable settlements.
Trusts can be set up during a person’s life or after their death.
Trusts can be created intentionally (express trusts) or by reason of the circumstances that one person is holding property for the benefit of another (constructive trusts). In regard to the latter neither the trust or its terms are immediately apparent after a gift has been made.
Nevertheless such, being a secret trust, can he held legally viable if evidence can be shown that the person making the gift intended to create a trust, and they made such an intention plain to the intended beneficiary, and that the beneficiary accepts such a secret trust.
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We have a wide and diverse experience in dealing with all aspect of trusts by lifetime and after death, express and constructive and indeed with secret trusts, by reason of the creation of the same and in regard to litigation over the same.
We have also dealt with situations where promises have been made by one person to another that if the other gives up a benefit they had in reliance of a promise made by the other party, then if that promise is reneged upon legal action is taken to enforce that promise (proprietary estoppel claim).
For instance if someone (promisee) sells their own house to live with someone else (promisor) on the promise when the promisor dies the promise will inherit the house. The promisor dies leaving his house to someone else.
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