TrustA trust is an equitable obligation, binding a person (who is called a trustee) to deal with property over which he has control (which is called the trust property), for the benefit of persons (who are called the beneficiaries), any one of whom may enforce the obligation. Any act or neglect on the part of a trustee which is no authorised or excused by the terms of the trust instrument, or by law, is called a breach of trust. The control of the trustee, may under the terms of a trust, be subject to fiduciary or personal powers vested in another person, who may sometimes be expressly designated a “protector”.
A trust is an obligation. In order to create this obligation and ensure it is enforceable, there are certain minimum requirements, namely three conditions must be satisfied. Three “certainties” must be present:
- Certainty of intention – it must be certain that the settlor intended to create a trust and
- Certainty of subject – the subject matter of the trust must be certain, the trust property clearly identified and
- Certainty of objects – the objects (or beneficiaries) of the trust must be certain.
SettlorThe settlor is the person who establishes the trust; he is the person who transfers money or other property to trustees for them to hold upon the terms of the trust.
It can be an individual or a corporate entity.
TrusteeThe initial trustees are appointed by the settlor. The trustees hold the legal title of the trust property subject to the terms of the trust and their fiduciary duties owed to the beneficiaries.
Every person who is capable of owning a legal interest in property may be appointed as trustee.
A trustee must at all times:
- Comply strictly with the terms of the trust deed;
- Act honestly and in good faith and exercise his powers in the best interests of the
- beneficiaries, putting their interest first, before his own self-interest and the
- interests of others;
- Be loyal to the beneficiaries;
- Avoid conflicts of interests, so that he must not put himself in a position where his duty to the beneficiaries conflicts (or may conflict) with his own self-interest or his duties to others;
- Keep trust property separate from his own, maintain accurate records relating to trust property and be ready to produce accounts showing historical receipts and payments made from the trust fund.
BeneficiariesThe beneficiaries are the persons for whose benefit the trust is created. They may be named and identified in the trust instrument or described by reference to a class of beneficiaries.
A beneficiary has a personal right to enforce the terms of the trust and ensure that its provisions are adhered to by the trustees. In the absence of any specific provision in the trust instrument, the beneficiaries have no right or power to influence how the trust should be administered by the trustees.
ProtectorThe role of the protector is broadly to protect the trust assets on behalf of the beneficiaries and ensure that the trustee complies with the terms of the trust.
Any person or corporate entity may be appointed protector.