Classifications of trust

There are no hard and fast categories but the following classes may be convenient:

1.      Express trust.
An express trust is one created by an express declaration of the person in whom the property is vested. This could be under a will or by way of a trust deed or even under a document not under seal or orally.   What matters is that there is intention and conduct creating the trust. An express trust is also referred to as a declared trust.

2.      Implied trust.
An implied trust arises from the presumed as opposed to the expressed intention of the owner of the property. So for example if property is transferred to A to be held on certain trust which fail there is a presumption that A hold the property in trust for the owner’s estate. Sometimes these are also called presumptive trusts or resulting trusts.

3.      Constructive trust.

This is a trust imposed by equity although it is neither the expressed nor the presumed intention of the settlor or the testator or the owner of the property. Equity will impose such a trust  when it would an abuse of confidence to allow the holder of the property to use it for his own benefit. See Keech v Standford (1726) where the trustee of leasehold property had used his position to induce the landlord to renew the lease in his favour upon the determination of the initial term of the lease. The court held that this was an attempt to obtain a personal advantage for himself which was antagonistic to the beneficiary’s interest and in bad faith. He was directed to hold the new lease on the trust under which he held the old lease. And this situation has also arisen in Kenya in customary view of land trust: you cannot defeat the first title under LRA. But judges have gone around this especially where the land involved was family land.

Trust may also be classified between private and public or charitable trusts.

A trust is said to be private if it is for the benefit of an individual or a class of individuals which the law refers to as a defined but limited group of beneficiaries. By its nature it can be enforced by the individual or individuals. It is private even though there may be some benefit conferred thereby to the public at large.

On the other hand a public trust promotes the public welfare as an object and is public even if it incidentally confers a benefit on an individual or class of individuals. The public trust is only enforceable by the Attorney-General or an officer appoint by him for that purpose or by two or more persons who can show that they have interest in the trust with the express consent of the Attorney-General.

Then you have trusts of perfect and imperfect obligation.

Trust of imperfect obligation
A trust not enforceable by a beneficiary or on the beneficiary’s behalf is called a trust of imperfect obligation. The courts are rather reluctant to uphold such trusts, e.g. a trust to take care of my dog Simba. But some have been enforced such as a trust to take care of a tomb. There have been borderline cases that the courts have upheld but refused to follow as precedent, e.g. a trust to enhance grounds for hunting

Trust of perfect obligation
In the case of perfect obligation the objects are specific and capable of enforcing the trust
Imperfect obligation

Express Private Trust
Who has the capacity to create an express private trust. If a person a power of dispossession over a particular type of property he can create a trust of that property. He must be of age and of sound mind and a trust will be set aside if it can be show that the settlor did not understand the nature of his act. The burden of proof will normally lie with the person seeking to set aside the trust but where there is a long history of mental illness the burden is easily discharged and it is then for the other side to prove that the trust was made  during a lucid interval. See the case of Cleare v Cleare (1869) 1 P & D 655.


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