ABSTRACT
Constituting the Trust and the Relationship with Creating a Trust The essential requirements for the creation of an express trust are that the trust must be both declared and constituted. The requirements to declare a trust have been considered in the previous three chapters. They are that the trust must:
(a) be established by a settlor with mental and physical capacity who must, if the type of trust property requires it (for example, land 1 ), adhere to any necessary formalities; 2
(b) comply with the three certainties. The settlor must intend to declare a trust, that the trust property and the intended benefi cial interests in it must be suffi ciently certain and that the objects of the trust must also be clear, so that in all cases the trust can be administered by the trustees; 3
(c) adhere to the benefi ciary principle which, as a general rule, provides that the trust must be intended to benefi t ascertainable human benefi ciaries, as opposed to pursue a purpose; 4 and
(d) not infringe the rules against perpetuity. The most signifi cant of these is that the trust property must nowadays vest in its intended benefi ciaries within a fi xed perpetuity period of 125 years from when the trust comes into effect. 5
Complying with these four requirements ensures that the express trust has been properly declared. In addition, the trust must be completely constituted. The trust will not be valid unless it has been constituted.
