Formalities & constitution
Formalities are the writing and signature requirements for certain trusts; constitution is the transfer of the trust property to the trustees. A trust must be properly declared and completely constituted to be enforceable.
What "Formalities & constitution" covers
- A declaration of trust respecting land must be manifested and proved by signed writing (LPA 1925 s.53(1)(b)); the writing is evidential and may post-date the declaration.
- A disposition of a subsisting equitable interest must itself be in signed writing (LPA 1925 s.53(1)(c)) — Grey v IRC; Vandervell v IRC.
- Constitution of a trust of a legal estate requires the correct method of transfer to the trustee (Milroy v Lord): e.g. a deed and registration for land, share transfer form and registration for shares.
- Equity will not perfect an imperfect gift and will not assist a volunteer; an incompletely constituted trust of which the intended beneficiary gave no consideration is generally unenforceable.
- Exceptions where equity intervenes: the 'every effort' rule (Re Rose), the rule in Strong v Bird, donatio mortis causa, and unconscionability (Pennington v Waine).
- A self-declaration of trust needs no transfer — the settlor already holds the property — but must be a present, binding declaration, not a failed gift (Jones v Lock).
- Testamentary trusts must comply with the Wills Act 1837 s.9 (writing, signature, two witnesses).
Key cases & statutes
The authorities and provisions most likely to matter for this subtopic:
How it's tested in SQE1
SQE1 uses single best answer questions: a short factual scenario, one precise question, and five options of which only one is the best answer on the law applied to the facts. For formalities & constitution, expect to be asked what the correct legal position is, what a party may or must do, or which outcome follows — with more than one option looking arguable. Reading the facts carefully and eliminating the near-misses is the skill that earns the mark.
Where candidates lose marks
- Confusing s.53(1)(b) (declaration of trust of land — evidential writing) with s.53(1)(c) (disposition of an equitable interest — writing required for validity).
- Trying to save a failed outright gift by reinterpreting it as a self-declaration of trust (Jones v Lock).
- Overlooking that s.53(2) exempts resulting, implied and constructive trusts from the writing formalities.
Learn this subtopic in the course
A video lesson, notes and exam-style practice on formalities & constitution.
FAQ
Is formalities & constitution tested on SQE1?
Yes — formalities & constitution is part of the SQE1 Trusts syllabus (FLK2) and can appear in single best answer questions.
How is formalities & constitution examined in SQE1?
SQE1 tests it by application: you're given a realistic scenario and choose the single best answer from five options. The focus is on using the law correctly, not reciting it — knowing the leading authorities (LPA 1925 s.53(1)(b), LPA 1925 s.53(1)(c)) helps.