What’s the difference between an express trust and non-express trust?

by The FindLaw Team

There are generally two classifications of trusts: express and non-express. Although there may be two classifications of trusts, there is however three features that are common to all trusts, being:

  • a trust must have a trustee who holds legal title to the trust property;
  • the property held by the trustee for the benefit of a beneficiary, or for another purpose recognised by law (such as a charity);
  • the trust property must be vested in the trustee.

Outside of the three common elements, there are a number of differences between express and non-express trusts which this piece will outline.

Express trusts

An express trust is when a settlor creates a trust declaring herself or himself as a trustee of their own property, or transferring said property to another trustee.  Although, an express trust is created pursuant to the intention of the settlor, the courts can also make an inference to the intention to create an express trust if it is satisfied that the parties want to create a equitable interest in a third party, and the trust relationship is the appropriate means of creating that intention.

Types of express trusts

Private trusts: a trust that is created to benefit at least one natural, or corporate person is referred to as a private trust.

Public trust: a trust for the purpose of a charity (or anything else recognised by law) is referred to as a public trust.

Fixed trusts: when talking about fixed trusts, the beneficiaries, or class of beneficiaries is ascertainable and entitled in equity to the trust property, and is ascertained in accordance with the terms of the trust. Beneficiaries can force the trust property to be administered and distributed.

Discretionary trusts: in discretionary trusts, the discretion of the trustee is absolute. Therefore, a trustee can apply the trust income or capital to beneficiaries, or for charitable purposes. Beneficiaries of a discretionary trust have a mere expectancy, and as a consequence, have no enforceable claim to the trust income, or capital until the trustee chooses to exercise the discretion in their favour.

Executed trusts: under an executed trust, all the necessary steps to complete the trust have been fulfilled, the terms are clear, and the formalities completed, therefore, the trust has been ‘executed’.

Executory trusts: for ‘executory’ trusts, the settlor’s intentions in establishing a trust is evident, but there are further steps which remain in the finalising, settling, and the defining of the terms of the trust.

Bare trusts: the interest of a trustee under a bare trust is limited to only holding legal title to the trust property. There is no further duty of performance – except to transfer the property on demand to the beneficiaries, or as directed by them.

Non-express trusts

In instances where there is an absence of an express or inferred intention to create an interest recognisable in equity, by implication of law (resulting trusts), equitable interests may still arise. Additionally, an equitable interest can also be imposed by the court (constructive trusts).

Resulting trusts: a resulting trust arises where the settlor confers the title to property to another person, but retains the beneficial ownership of the property either in whole, or in part. There is a presumption in relation to a resulting trust of an intention arising out of a particular form of transaction.

Constructive trusts: generally, the courts impose constructive trusts if there has been no declaration of a trust. However, the principles of equity would consider it to be a ‘fraud’ for a person whom the court imposes the trust to assert a beneficial ownership, or not account for a gain, or compensate another for a loss. 



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