AI will greatly assist in the administration of express and charitable trusts and also be of significant benefit to trust law in acting as an adjudicator. AI should be able to act as an acceptable trustee of an express trust, and resulting trusts do not insurmountably challenge AI, either as trustees or adjudicators. The proposition that discretionary trusts are unsuited to AI administration can be rejected along with the notion that the discretionary nature of remedies makes this area of law unsuited to AI adjudication. Although constructive trusts may pose some difficulties for AI, this may be solved through legal reform. Further, the difficulties that AI trustees will create are not incapable of practical solutions.

Trusts come in all shapes and sizes. They are used for multifarious purposes; by individuals and families, by financial institutions and other businesses, by charities and foundations and by the courts. The trust is, as Maitland once famously observed, ‘An institute of great elasticity and generality; as elastic, as general as contract’. It is usually neither difficult nor controversial to recognise the existence of a trust. However, as we shall see, this is not always the case. This chapter first presents a description of express trusts in terms of the main characteristics with which they are typically associated. It then approaches the question from the opposite direction, by contrasting the legal archetype to other legal concepts, such as equitable charges, debts and partnerships that have points of similarity but also points of difference. The picture of the institution we know as an express trust that emerges through these two perspectives, although perhaps not deserving the title ‘definition’, will provide some guidance as to the nature and form of this most elastic of legal concepts.

This chapter examines how a trust is created. Two modes of creation are recognised: first, a settlor can declare herself trustee of her own property (creating a trust by self-declaration) or, secondly, a settlor can transfer property to another with the intention that the other shall hold the property as trustee (creating a trust by transfer). The authorities on certainty of intention set out in chapter 14 determine whether the trust has been declared. No formality is needed in order to create the trust except where the Statute of Frauds, re-enacted in all States and Territories, imposes writing requirements.In order for a trust to be validly created by transfer, the common law or statutory formalities necessary to transfer the title to the property to the intended trustee must be complied with. A transfer that is invalid at law may be validated in equity by application of the principle of Corin v Patton (1990) 169 CLR 540 (see []; []); namely, that the settlor has done everything that it is necessary for her to do to transfer her interest in the property.

The duration of all express trusts except charitable trusts is limited by the application of the rule against perpetuities. As explained in chapter 15, the rule does not impose a fixed time limit on the duration of a trust. In most cases, it imposes a limit (nowadays usually 80 years) beyond a which an interest arising under the trust cannot vest. In South Australia, the perpetuity rule has been abolished but a court may, upon application, vary the terms of a trust 80 or more years after the date of the instrument creating the trust so that any interests which have not yet vested vest immediately. There are no limits on the duration of a charitable trust beyond the practical limitation of the availability of trust money to be applied for the charity’s objects. If the original objects of the charity become impossible or impracticable to achieve, a cy-près scheme will be approved enabling the trust property to be applied for objects which are as close as possible to the original objects.

Enforceability of an express trust depends on proof of certainty in three matters: intention to create a trust, subject-matter, and objects. In addition to satisfying the certainty requirements and not infringing public policy prohibitions on creating trusts, an express trust must have been validly created (or constituted). That is, the trust must be properly declared, and title to the trust property must be properly vested in the trustee. Additionally, some trusts must comply with statutory formalities. Unless they meet these requirements they will be unenforceable or void, depending on the statutory provision in question.