Express trusts are those expressly declared by the settlor. Typically, this will be intended to create a trust, but there can be situations in which the settlor's intended actions create a trust accidentally,Hudson (2009) p.45 as in Paul v Constance.[1977] 1 WLR 527 The creation of express trusts must involve four elements for the trust to be valid. These are capacity, certainty, constitution and formality. Capacity refers to the donor's ability to create a trust in the first place; generally speaking, anyone capable of holding property can create a trust.Edwards (2007) p.90 There are exceptions for statutory bodies and corporations,Edwards (2007) p.92 and minors who usually cannot hold property can, in some circumstances, create trusts.Edwards (2007) p.91 Certainty refers to the three certainties required for a trust to be valid. These are that the trust instrument must show certainty of intention to create a trust, certainty of what the subject matter of the trust is, and certainty of who the beneficiaries (or objects) are.Hudson (2009) p.73 Where there is uncertainty for whatever reason, the trust will fail, although the courts have developed ways around this.Hudson (2009) p.143-7 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.Edwards (2007) p.100
