[3] There are exceptions for statutory bodies and corporations,[4] and minors who usually cannot hold property can, in some circumstances, create trusts.
[7] Constitution means that for the trust to be valid, the property must have been transferred from the settlor to the trustees.
For chattels, this can simply be handing the property to them, while transfers of land and shares must be done in writing following certain prescribed forms.
[9] To get around this, the courts have developed exceptions to this rule for situations when the donor has done "all that he could do", the trustees or beneficiaries have acquired the property in a different way, or where the gift was made donatio mortis causa.
[12] When disposing of an equitable interest, the Law of Property Act 1925 must also be followed; much of the case law in this area has centred on the meaning of "dispose", with many cases involving people attempting to avoid tax.
Alastair Hudson gives the example of a trust "that [the trustee] shall divide the £1,000 between any of my sons who become unemployed, with the power to retain the whole of that £1,000 for the remainder beneficiary".
Discretionary trusts are regularly used, because they provide flexibility; in this situation, for example, the money could be retained and redistributed in a different form if one beneficiary develops some urgent need for it.
Stamp LJ had an approach based entirely on the facts, with no greater impact on certainty of objects.
In Re Hay's ST,[24] Megarry VC said that: A mere power is very different [from an ordinary trust obligation].
In relation to certainty of objects, mere powers are also a problem, for the same reason that discretionary trusts are.