ABSTRACT
It is the central contention of this book that the trust is best understood as being a creation of equity under which the actions of the legal owner of property are controlled to prevent unconscionable conduct. This is so even though the modern trust is in fact far more formalistic than this root in ‘good conscience’ would seem to suggest: a dichotomy which is considered further in Chapter 13. Nevertheless, the speech of Lord Browne-Wilkinson in Westdeutsche Landesbank v Islington (1996) re-emphasised the importance of the concept of ‘conscience’ in relation to the trust:
Thus the trust is imposed in any circumstance in which the owner of property is bound by good conscience to recognise that someone else ought to have rights in that property too. This may be because the a settlor has consciously created an express trust or because the court interprets the parties’ behaviour to disclose sufficient intention to create something which the law would recognise as being a trust.
