ABSTRACT
Resulting trusts are an essential doctrine in the law of trusts. Apart from relatively rare occasions when the subject matter of a trust will pass to the Crown as ownerless property (bona vacantia), resulting trusts provide the last practical means of disposing of trust property should the original scheme of a trust fail. In fact, a resulting trust can arise in such a variety of circumstances that there is only marginal merit in considering it on an undergraduate course as a topic in its own right. For example, resulting trusts need to be considered in relation to secret trusts, the three certainties, the beneficiary principle, charities, formalities and constructive trusts. This is not an exhaustive list, and the use of the resulting trust in these and other cases is best considered alongside the substantive law which it services. Moreover, there is now much academic discussion about the proper theoretical basis of resulting trusts: for example, do they arise by reason of the intention of the parties, by operation of law, out of the implied or express acceptance by the resulting trustee of an obligation affecting conscience, or for different reasons in different circumstances. This has practical consequences, as illustrated by the House of Lords’ refusal to impose a resulting trust on the defendant in Westdeutsche Landesbank Girozentrale v Islington LBC (1996). As indicated above, much of this debate is outside the scope of an undergraduate course, but there are issues here which need consideration. In this chapter, brief attention will be paid to the attributes of the resulting trust per se (assuming that ‘resulting trusts’ share some common attributes), to issues touching on the rationale for the imposition of resulting trusts and to a typical problem-type examination question.
