What Is an Express Trust?
Chambers v Chambers 2012 BCSC 81 involves litigation between a 90-year-old brother and his younger 79-year-old brother regarding the percentage of ownership in a house that the older brother (A) purchased so that the younger brother ( B) could live in.
The house was purchased in 2005 by A with his own money.
The idea was that brother B would have a place to live until he died.
A had initially told B that he would register the house in joints tenancy, but after meeting with a lawyer, he subsequently told B that he would give him 1% interest on title as a tenant in common, which he did.
In 2010 the house was sold over the objections of B who refused to sign the sale documents because he objected to receiving only 1% of the sale proceeds.
By agreement one half of the sale proceeds were held by a lawyer while B brought an application to court for a finding that 50% of the sale proceeds of the home were held in trust for him.
His application was dismissed and he was only entitled to 1%.
His first argument was that of Express Trust, and this was dismissed on the basis of no evidence of such a trust:
An express trust requires a settlor, a beneficiary, a trust corpus, words of settlement, certainty of object and certainty of obligation.
In order for an express trust to arise there must be certainty of intention, subject matter and object. There must also be a transfer of property to the trustee
In order to create an express trust in circumstances such as these, the three requisite certainties must be present.
In Saugestad v. Saugestad, 2006 BCSC 1839, the Court said the following at para. 82:
The requirements for the creation of an express trust include the three certainties:
1) the language of the settlor must be imperative,
2) the subject matter or trust property must be certain,
3) and the objects of the trust must be certain