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Statutory Formalities Notes

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This is an extract of our Statutory Formalities document, which we sell as part of our Trusts Notes collection written by the top tier of Monash University students.

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Statutory Formalities?

If the relevant statutory formalities are not complied with, the trust may be void or at least unenforceable Prevalence o Overlap of (b) and (a): (b) prevails over A DSS v James
? If both comply (b) also applies to validity o (c) prevails over (b) (obiter - DSS v James) o Unsure as to the status of (a) and (c) (realistically require writing at same time)

? No interest in land (NOT CHATTEL) can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorised in writing, or by will, or by operation of law. o Applies to: (no mention of "trust")
? All disposition of legal or equitable interests in land Adamson v Hayes
? All creations of legal interests in land Adamson v Hayes
? All creations of equitable interests in land, except where that interest is created by a declaration of trust Adamson v Hayes o Trusts by transfer, does not apply to declaration of trust as that would render (b) useless DSS v James o Must be signed at the time o Creation: bringing into existence a new interest o Disposition: movement of an existing interest e.g. selling o Interest in land: means legal and/or equitable interest in land Adamson v Hayes
? If not complied with, the trust is void 53(1)(b)
? A declaration of trust respecting any land (NOT CHATTEL) or interest therein must be manifested and proved by some writing signed by some person who is able to declare such a trust or by his will o Applies to creation of equitable interests in land by declaration of trust o Declaration of trust can be oral and later reduced to writing - until it is reduced to writing, it is not enforceable (but it is still valid)
? Writing must be done by the person who declares the trust, not an agent o Can read a combination of documents together to meet requirements
? Who can manifest and prove by some writing?
o Owner of the property (the settlor) o The trustee if it's a trust by declaration and settlor is incapable of signing it (limited to facts) Shouldn't be able to use the statute of frauds as an instrument of fraud. When there is a third party involved (not just trustee and beneficiary) probably won't be allowed Hagan v Waterhouse
? How do you manifest and prove by some writing?
o Can be informal o Can be contained in various documents o Essentially terms of the trust must be clear (as long as 3 certainties are clear) 53(1)(c)
? A disposition of an equitable interest or trust subsisting at the time of the disposition must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by his will
? Applies to both real and personal property (PT Ltd v Maradona Pty Ltd)
? What is a subsisting equitable interest?

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