ABSTRACT
A resulting trust is one which arises in circumstances where an express trust has been created, or should have been created, but is incomplete. The incomplete status can arise in a number of situations. Where a settlor attempts to create an express trust, but fails to completely exhaust the trust property in favour of the beneficiaries, a resulting trust may arise over the surplus property in favour of the settlor. Alternatively, where one party transfers property into the name of another but does not intend the transferee to receive a full beneficial interest in the property, a resulting trust may arise in favour of the transferor. In both these situations, the resulting trust arises either automatically or presumptively. The common feature of all resulting trusts lies in the fact that the beneficial interest has been incompletely disposed of. The trust mechanism is a protective device against the unjust enrichment of trustees or other recipients. The resulting trust confers the same rights and obligations as an express trust, with the primary distinction being that it arises without being expressly created and is not subject to the same formality requirements as express trusts. It differs from the constructive trust in that its creation is not a construction of the court but, rather, an automatic or presumptive result from the actual circumstances.
