Contents▾
Chapter Purpose
Chapter 9 opens Part Four of Volume I by developing the first of the five substantive elements of trust creation: the requirement that the settlor manifest an intent to create a trust. UTC § 402(a)(2); Restatement (Third) of Trusts § 13. Chapters 6 through 8 fixed the institutional character of the trust, the two-title conception, and the tripartite relationship. The present chapter fixes the constitutive act by which the institution is brought into being. It states why the manifestation-of-intent requirement is the doctrinal predicate of every other element of creation; it distinguishes manifested intent from subjective intent and from motive; it develops the traditional problem of precatory language and the modern American presumption; it restates the classical three certainties of Knight v. Knight and their descent into the American five-element framework; it develops the three modes of manifestation — self-declaration, transfer to another as trustee, and testamentary disposition — recognized under UTC § 401; it treats oral and written manifestations against the Statute of Frauds; it fixes the timing of the manifestation and its effect on classification; it introduces the defenses to intent — mistake, undue influence, fraud, and incapacity; and it locates the express-trust intent element relative to the intent inquiries in resulting and constructive trusts. Each section states not only how the intent is manifested but why manifestation of intent is the foundational legal requirement for the creation of an express trust. Chapter 9 is the immediate doctrinal predicate of Chapters 10 through 15, each of which presupposes the intent element this chapter fixes.
Principal Research Sources
Master Research Dossier v1.1, §4 (Institutional Analysis — the manifestation-of-intent requirement as the constitutive element of the express trust; the objective/manifestation standard; the distinction between express, resulting, and constructive trusts as differing kinds of intent inquiry); §5 (Historical Analysis — the three certainties of Knight v. Knight, 3 Beav. 148 (1840); Morice v. Bishop of Durham, 9 Ves. 399 (Ch. 1804); the descent of the three certainties into the American five-element framework of the Restatements); §2 (Authority Analysis — tier evaluation of Knight v. Knight, Morice v. Bishop of Durham, Hebrew University Ass'n v. Nye, 148 Conn. 223 (1961), Unthank v. Rippstein, 386 S.W.2d 134 (Tex. 1964), and the modern American cases on precatory language and on oral trusts of personalty); §7 (Treatise Analysis — Scott & Ascher §§ 4.1–4.13, Bogert & Hess §§ 45–48, 51, Restatement (Third) §§ 10, 12–17, 20, 25, Loring & Rounds ch. 5); §10 (Authority Matrix — UTC §§ 401, 402(a)(2), 402(c), 403, 407; Restatement (Third) §§ 10, 12, 13, 15, 16, 17, 20, 25); §11 (Discrepancy Register — the traditional and modern approaches to precatory language and the modern American retreat from the strict presumption against trust construction; the relation of the three certainties to the American five-element framework; the treatment of contemporaneous oral manifestations of trusts of personal property; and the boundary between inter vivos manifestations effective on death and testamentary manifestations reserved to Chapter 15 and, operationally, to Chapter 17 (Farkas v. Williams)).
Canonical Part Structure Applied
Chapter 9, as the opening chapter of Part Four (Creation), develops a reduced Part set under the Canonical Treatise Architecture: Part I (Foundations, in its doctrinal-institutional aspect — the intent element as constitutive); Part II (Legal Nature, at doctrinal depth — manifested versus subjective intent, precatory language, the three certainties); Part III (Creation, at doctrinal depth — the three modes of manifestation, formalities interface, timing); Part IX (Defenses, at foundational depth — mistake, undue influence, fraud, incapacity); and Part X (Related Doctrines, in the cross-reference to resulting and constructive trusts). The remaining Parts are omitted rather than fabricated.
- Part IV (Operation) — omitted. Administration is reserved to Volume II.
- Part V (Transfer) — omitted. Transfer of the beneficial interest is reserved to Volume II.
- Part VI (Rights and Duties) — omitted at doctrinal depth. Foundational treatment appears in Chapters 8 and 22; doctrinal depth is reserved to Volume II.
- Part VII (Procedure) — omitted. Reserved to Volume II.
- Part VIII (Enforcement) — omitted at doctrinal depth. Foundational treatment appears in Chapter 8.
- Part XI (Practical Application) — omitted. Reserved to Chapter 23 and to Volume II.
Reader Orientation
A reader completing this chapter should be able to state why the manifestation-of-intent requirement is the constitutive element of the express trust and why no other element of creation is operative without it; distinguish manifested from subjective intent and identify the objective standard on which the trust arises; identify precatory language and apply the modern American presumption against trust construction as defeasible by context; state the three certainties of Knight v. Knight and locate them within the American five-element framework; identify the three modes of manifestation recognized under UTC § 401 — self-declaration, transfer to another as trustee, and testamentary disposition — and state the formalities interface for each; distinguish the trust intent from contractual and testamentary intent; state the effect of the timing of the manifestation on the classification of the trust as inter vivos or testamentary; identify the foundational defenses to intent — mistake, undue influence, fraud, incapacity — and state their doctrinal outcomes; and locate the express-trust intent element relative to the intent inquiries in resulting and constructive trusts developed in Chapters 20 and 21. Applied drafting work — the interpretation of specific instruments, the litigation of contested manifestations, the interaction of intent with modern estate-planning devices — is reserved to Volume II and to the applied practice chapters.
The Intent Element as Constitutive
The first of the five substantive elements of trust creation is that the settlor manifest an intent to create a trust. UTC § 402(a)(2); Restatement (Third) of Trusts § 13. The requirement is doctrinally prior to every other element. Capacity (Chapter 10) is the capacity to manifest; the res (Chapter 11) is the object to which the manifestation must attach; the ascertainable-beneficiary requirement (Chapter 12) is the identification of the persons or purposes whom the manifestation must designate; the lawful-purpose requirement (Chapter 13) is the objective the manifestation must pursue; and the formalities (Chapters 14–15) are the modes in which the manifestation must be expressed for certain classes of trust. Without a manifestation of intent to create a trust, there is nothing for capacity to enable, nothing for the res to receive, nothing for the beneficiary requirement to identify, nothing for the purpose requirement to test, and nothing for the formalities to formalize. The trust does not arise by operation of law — that is the province of resulting and constructive trusts (Chapters 20–21) — but from a communicated design, and the doctrinal work of Chapter 9 is to state what is required for that design to be communicated.
The centrality of the intent element is the doctrinal expression of the equitable maxim, developed at Chapter 3, that equity looks to the intent rather than the form. The trust is imposed only where the settlor has chosen to impose it; equity gives effect to the settlor's manifested intent but does not manufacture that intent. The classification questions of Chapters 16 through 19 — express, testamentary, revocable, and charitable trusts — all presuppose that a manifestation of intent has occurred; they parse the manifestation's mode and content but do not supply it. In the same way, the operational law of Volume II presupposes the manifested intent as its interpretive frame: the trustee's duties are to administer "in accordance with the terms of the trust" (UTC § 801), and those terms are the residue of the settlor's manifestation.
Manifestation Distinguished from Subjective Intent
The trust arises from the settlor's manifestation of intent — the outward expression, in words or conduct, of the intent to create a trust — not from the settlor's uncommunicated subjective intent. Restatement (Third) of Trusts § 13 cmt. a. The requirement is of manifested, not subjective, intent: the settlor's private state of mind is doctrinally irrelevant except insofar as it is manifested by external evidence — words, writings, and conduct — susceptible of judicial discernment. UTC § 402(a)(2). The rule is a doctrinal application of the equitable maxim: what is required is not the utterance of magic words but the external expression of an intent that a court can identify by ordinary means of proof. A court asked whether an intent to create a trust was manifested looks to what the putative settlor said and did, read in context and against the surrounding circumstances, not to what the putative settlor may privately have wished. The rule reflects the general Anglo-American commitment to the objective theory of legal act: like the offer and acceptance of contract law and like the animus testandi of wills law, trust intent is judged by external manifestation because private states of mind are neither observable nor administrable.
The manifestation-based standard resolves several perennial doctrinal puzzles. It explains why the absence of the word "trust" is not fatal: the intent may be manifested by conduct, by the identification of separate legal and equitable titleholders, by the imposition of duties characteristic of the trustee's office, or by the practical operation of the arrangement. It explains why the presence of the word "trust" is not conclusive: a purported "trust" may be, on analysis, an agency, a bailment, a gift with strings, a debt, or a mere expression of hope. And it explains why the intent is judged as of the time of the manifestation, not as of some later time when the settlor's views have changed: the trust is a legal institution whose existence turns on a communicated design at a fixed moment, not on a subjective attitude persisting through time. Motive — why the settlor wished to create the trust — is likewise doctrinally distinct from intent: a settlor may create a trust for tax reasons, family reasons, or improper reasons, but the trust exists because of the manifestation, not because of the motive.
Precatory Language
Language of hope, wish, recommendation, or expectation — "I would like," "I recommend," "in the confidence that," "trusting that," "my desire is that" — is precatory. The classical doctrinal problem is the following: a testator devises property to A "trusting that" or "with the wish that" A will make suitable provision for B. Does this create a trust for B, or a gift outright to A subject to a moral obligation only? The traditional English answer, elaborated in Knight v. Knight and consolidated in the American cases through the nineteenth century, was that precatory words could suffice to create a trust where the three certainties were present. The doctrinal current, however, has moved steadily against that construction; the modern American authorities, reflected in Restatement (Third) of Trusts § 25 and in the leading cases, hold that precatory language is presumed not to create a trust and imposes at most a moral obligation on the transferee.
The presumption is defeasible. Where the totality of the manifestation shows that the settlor intended to impose an obligation rather than express a wish — because the surrounding language is imperative, because the specificity of the property, the beneficiaries, and the objects supplies the certainty the precatory words lack, because the transferee's status and relationship to the alleged beneficiary support the construction of duty, or because the practical operation of the language would otherwise be nugatory — the presumption yields, and the language operates as a manifestation of trust intent. Unthank v. Rippstein, 386 S.W.2d 134 (Tex. 1964), is the standard American statement of the modern approach: a promise to make monthly payments, however sincere and however documented, does not create a trust where the language does not manifest a present intent to impose enforceable fiduciary duties on identified property. The doctrinal core of the modern rule is that precatory language, considered alone, is a signal of aspiration rather than obligation, and the party asserting that a trust exists carries the burden of showing that the aspiration has crossed into imperative direction.
The Three Certainties
The classical statement of the intent element in English trust law is the three certainties, articulated by Lord Langdale M.R. in Knight v. Knight, 3 Beav. 148 (1840): certainty of intention (whether a trust is intended), certainty of subject matter (what property is subject to the trust), and certainty of objects (who the beneficiaries are or what purposes are to be served). The three certainties operate together as an interpretive test: the court identifies a manifested trust intent by finding, in the language and surrounding circumstances, all three certainties present. Where one or more is absent — where the language is precatory rather than imperative, where the property is undefined or floating, where the beneficiaries or purposes are indeterminate — the manifestation fails and no trust arises. Morice v. Bishop of Durham, 9 Ves. 399 (Ch. 1804), is the leading English case on the third certainty and remains the doctrinal source of the modern non-charitable-purpose-trust rule treated in Chapter 12.
The three certainties are the English organizational frame for what American doctrine parses as separate substantive elements: certainty of intention corresponds to the intent element developed here; certainty of subject matter corresponds to the res element developed in Chapter 11; certainty of objects corresponds to the ascertainable-beneficiary requirement developed in Chapter 12 (and, for charitable trusts, to the lawful-purpose requirement developed in Chapter 13). Volume I uses the American five-element framework, which is the framework of the Restatement (Third) and of the Uniform Trust Code; but the reader should recognize the three certainties as the doctrinal parent from which the American elements descend, and as the frame in which most English, Commonwealth, and older American authorities are stated. The two frameworks are compatible: the three certainties are an interpretive test, and the five elements are its substantive expression. Where the three certainties are present, the American elements are satisfied; where any of the three fails, the corresponding American element is unsatisfied and the trust does not arise.
Modes of Manifestation — Declaration, Transfer, Testamentary
The Uniform Trust Code, at § 401, recognizes four methods by which a trust may be created: transfer of property to another as trustee during the settlor's lifetime or by will; declaration by the owner of property that the owner holds identifiable property as trustee; exercise of a power of appointment in favor of a trustee; and a promise by another to hold property in trust, enforceable in equity. In the doctrinal shorthand of the treatises, these reduce to three basic modes of manifestation. First, self-declaration: the settlor manifests, in words or conduct, that the settlor holds identified property as trustee for identified beneficiaries; legal title remains where it is, and equitable title is called into being by the manifestation itself. Second, transfer in trust: the settlor transfers legal title in identified property to another as trustee for identified beneficiaries; the manifestation is the combined act of the transfer and its stated character. Third, testamentary disposition: the testator's will directs that property pass, on death, to a named trustee on stated trusts; the manifestation is in the will and takes effect only on death. Restatement (Third) of Trusts §§ 10, 16, 17.
Each mode has its own formal requirements. The inter vivos modes — self-declaration and transfer in trust — are subject to the Statute of Frauds where the property is real, and to the general evidentiary rules where the property is personal (Chapter 14). The testamentary mode is subject to the Wills Act (Chapter 15). The choice among modes is ordinarily a drafting question rather than a doctrinal one, though the mode chosen affects the applicable formalities, the tax treatment, and the practical vulnerability of the trust to challenge. Two doctrinal caveats bear notice here. First, the inter vivos declaration effective only on death is testamentary in substance and must satisfy the Wills Act on pain of failure; the boundary case is the revocable inter vivos trust treated at doctrinal depth in Chapter 17, and the leading authority is Farkas v. Williams. Second, the promise to hold property in trust — the fourth of the UTC § 401 methods — is not the creation of a trust as such but a contract or promise the equitable enforcement of which produces a trust; the manifestation is the promise, but the trust arises only when the property is delivered or the promise is specifically enforced.
Oral Manifestations and the Formalities Interface
A trust of personal property may be created by oral manifestation, subject to the ordinary evidentiary rules. Restatement (Third) of Trusts § 20; UTC § 407 (permitting proof of the creation of an oral trust by clear and convincing evidence). A trust of real property must be evidenced by a writing under the Statute of Frauds, 29 Car. 2, c. 3, §§ 7–9 (1677), and its American analogues; the writing requirement is treated at doctrinal depth in Chapter 14. A testamentary trust must satisfy the Wills Act (Chapter 15). The distinction between oral and written manifestations reflects the historical development of the formalities: the Statute of Frauds imposed a writing requirement for real-property trusts but not for personal-property trusts, and the modern American statutes have preserved the distinction with modest variations.
Oral manifestations are, in practice, unusual for well-advised donative trusts but common in the informal family and charitable contexts in which many trust disputes arise. Hebrew University Ass'n v. Nye, 148 Conn. 223, 169 A.2d 641 (1961), addresses the sufficiency of oral and conductual manifestations in the context of a promised charitable donation and stands for the modern proposition that a manifestation of trust intent may be made out from a combination of oral statements and delivery-adjacent conduct. The doctrinal caveat is the ordinary evidentiary one: because oral manifestations are peculiarly liable to reconstruction after the fact, the American courts require clear and convincing evidence of the manifestation, and UTC § 407 codifies that requirement. The Statute-of-Frauds writing requirement, for its part, operates not to require a formal trust instrument but to require some writing signed by the party to be charged that evidences the trust; the doctrinal detail is treated in Chapter 14.
Timing of Manifestation
The intent must be manifested at or before the time the trust is to arise. Restatement (Third) of Trusts § 15. A retrospective manifestation — the settlor says now that he intended, some years ago, that property he then transferred should have been held on trust — does not create an express trust at the earlier time. Depending on the circumstances, the earlier transaction may produce a resulting trust (where the transferor did not intend to make a gift and no purpose was manifested for the beneficial interest to reach: Chapter 20) or a constructive trust (where holding the property free of the earlier obligation would be unjust enrichment: Chapter 21). But the express trust arises only from a manifestation contemporaneous with or preceding the funding, and the belated retelling of intent cannot supply the constitutive act.
The moment of manifestation controls the classification and the effective date of the trust. An inter vivos trust is created at the moment of manifestation and funding: the manifestation calls the equitable interest into being, and the funding supplies the res on which the equitable interest attaches. UTC §§ 401, 402; Restatement (Third) § 15. Where the manifestation precedes the funding — as in a declaration of trust in property not yet owned — the trust arises only when the property is acquired and comes within the manifestation's terms. A testamentary trust is created at the testator's death: the will's manifestation of intent operates only on death, and the trust arises when the property passes under the will to the trustee. UTC § 402(a); Restatement (Third) § 17. The boundary case is the inter vivos manifestation effective on death — a declaration or transfer in trust reserving all substantial powers to the settlor until death — which is testamentary in substance and must satisfy the Wills Act unless it qualifies under the doctrine of Farkas v. Williams treated at doctrinal depth in Chapter 17.
Trust Intent Distinguished from Contractual and Testamentary Intent
Trust intent is distinguishable from contractual intent and from testamentary intent, though it interacts with both. Contractual intent is the intent to enter into a binding agreement supported by consideration, exchanged between two or more parties, and enforceable at law for damages. Trust intent is the intent to hold identified property for the benefit of another under fiduciary duties enforceable in equity. A gift accompanied by a promise to use the property in a particular way is ordinarily contractual, not fiduciary; a transfer of legal title to a person under stated duties to administer for a third party is ordinarily fiduciary, not contractual. The two intents can, however, coexist in a single transaction — most familiarly in the funded life-insurance trust or the pour-over will — and the doctrinal question in those cases is not whether one displaces the other but which incidents attach to which limb of the transaction. Restatement (Third) of Trusts § 5 catalogs the trust's institutional distinctions from agency, bailment, contract, and debt developed at doctrinal depth in Chapter 6.
Testamentary intent is the intent that a disposition of property take effect only on death and be revocable during life; it is the intent required by the Wills Act (Chapter 15). Trust intent may be manifested in a will — producing a testamentary trust — or in an inter vivos instrument. Where the manifestation is in a will, the trust intent and the testamentary intent operate together: the will supplies the testamentary character; the trust intent supplies the fiduciary character of the disposition. Where the manifestation is in an inter vivos instrument that operates only on death (the classical revocable-living-trust configuration), the trust intent operates immediately to create the trust, and the reservation of substantial powers to the settlor supplies the will-substitute function. The two intents are conceptually distinct: the manifestation of trust intent creates fiduciary duties; the manifestation of testamentary intent triggers the Wills Act formalities. Chapter 17 develops the interaction in the specific context of the revocable trust.
Defenses to Manifested Intent — Mistake, Undue Influence, Fraud, Incapacity
A manifestation of intent procured by fraud, undue influence, duress, or mistake, or made by a person lacking the requisite capacity, may be avoided by the settlor or by the settlor's successors. Restatement (Third) of Trusts § 12; UTC § 406. The defenses track the corresponding doctrines of wills law and contract law, and the trust context adopts the standards developed in those adjacent bodies: incapacity uses the wills standard for testamentary trusts (Chapter 10 and Chapter 15) and the contract standard for inter vivos trusts (Chapter 10); undue influence and fraud use the substantive standards developed in the wills cases and adapted to trust manifestations; mistake follows the mixed doctrinal frame of the Restatement (Third) of Property (Wills and Other Donative Transfers) and the Restatement (Third) of Trusts. Because the manifestation is the constitutive act, a successful challenge on one of these grounds strikes at the trust's foundation and, depending on the doctrine, either voids the manifestation ab initio or renders it voidable at the option of the injured party.
A successful challenge produces one of three doctrinal outcomes. First, the manifestation is void ab initio — as in the case of fundamental mistake or forgery — and no trust ever arose; the property is treated as never having been subject to the purported trust. Second, the manifestation is voidable at the option of the injured party — as in the ordinary case of fraud in the inducement, undue influence, or duress — and, on avoidance, the property returns to the transferor or the transferor's estate under the doctrine of resulting trust (Chapter 20). Third, where wrongful conduct is proved and the equities of the case require it, the property may be held on constructive trust for the person the wrongful conduct defrauded (Chapter 21). The foundational treatment offered here is intended to fix the doctrinal outcomes; the applied litigation of these defenses, the standards of proof, and the interaction with capacity and undue-influence litigation are treated at doctrinal depth in Chapter 10 and in Volume II.
Intent in Resulting and Constructive Trusts
The express-trust intent element developed in this chapter — the manifested intent of the settlor to create a trust — is doctrinally distinct from the intent inquiries that animate the resulting trust (Chapter 20) and the constructive trust (Chapter 21). A resulting trust is a trust arising by operation of law from the presumed intent of a transferor who has transferred property in circumstances in which no beneficial interest was intended to pass — the classical case being the transfer of property to another in which the transferor supplied the consideration but did not intend a gift. The resulting trust reflects a presumed intent, not a manifested one; the doctrine substitutes an equitable inference for the missing manifestation and returns the beneficial interest to the transferor. Restatement (Third) of Trusts § 7. A constructive trust, by contrast, is not a trust at all in the express sense but a remedial device: it arises by operation of law where the retention of property by the legal titleholder would be unjust enrichment, and the trustee's duty is not to administer but to convey. Restatement of Restitution and Unjust Enrichment (Third) § 55; Restatement (Third) of Trusts § 7 cmt. b.
The doctrinal upshot for present purposes is that Chapter 9's manifestation-of-intent requirement is specific to the express trust: the resulting and constructive trusts do not require a manifestation of intent because they are not created by the parties but imposed by equity. When Chapters 20 and 21 speak of "intent," they mean either the presumed intent that would have prevailed had the parties addressed the point (resulting trust) or the intent to prevent unjust enrichment attributed to a court of equity (constructive trust). The three kinds of trust are, in this sense, three different responses to three different intent situations: the express trust responds to the settlor's manifested design; the resulting trust responds to the transferor's presumed unfulfilled intent; and the constructive trust responds to the moral demand of restitution. The intent element of the express trust is thus not the master concept of trust law generally but the master concept of the express trust; it is at its most doctrinally acute in the present chapter, and it recedes in significance as the analysis passes into the trusts imposed by law.
Key Principles
The first substantive element of trust creation is that the settlor manifest an intent to create a trust. UTC § 402(a)(2); Restatement (Third) of Trusts § 13. Without a manifestation of intent, no trust exists and no other element of creation has operative content.
The intent required is manifested, not subjective. The trust arises from the external expression of intent, in words or conduct, and not from the settlor's uncommunicated state of mind.
Precatory language is presumed not to create a trust and imposes at most a moral obligation on the transferee. The presumption is defeasible where the totality of the manifestation shows an intent to impose enforceable duty. Restatement (Third) § 25; Unthank v. Rippstein, 386 S.W.2d 134 (Tex. 1964).
The three certainties of Knight v. Knight — of intention, subject matter, and objects — are the interpretive test of the manifestation and are the doctrinal parent of the American five-element framework.
A trust may be manifested by self-declaration, by transfer in trust to another, or by testamentary disposition; each mode is subject to its own formal requirements. UTC § 401; Restatement (Third) §§ 10, 16, 17.
Oral manifestations are effective for trusts of personal property, subject to clear-and-convincing-evidence requirements; trusts of real property require a writing under the Statute of Frauds. UTC § 407; Restatement (Third) § 20.
The manifestation must be contemporaneous with or precede the funding, and it controls the trust's classification as inter vivos or testamentary and its effective date. Restatement (Third) § 15.
Manifestations procured by fraud, undue influence, duress, mistake, or incapacity are void or voidable; the doctrinal outcomes are the return of the property under a resulting trust or the imposition of a constructive trust. Restatement (Third) § 12.
Cross-References
Backward, within Volume I.
- Chapter 3 §§3.02–3.03 → §§9.01–9.02 (equity looks to intent rather than form)
- Chapter 7 §§7.03–7.04 → §9.05 (the two titles called into being by the manifestation)
- Chapter 8 §§8.01–8.02 → §§9.01, 9.05 (the settlor's constitutive role, now constitutive act)
Forward, within Volume I.
- §9.01 → Chapter 10 (capacity to manifest)
- §§9.04, 9.05 → Chapter 11 (certainty of subject matter; the res)
- §9.04 → Chapter 12 (certainty of objects; ascertainable beneficiaries)
- §9.04 → Chapter 13 (lawful purpose; the object of the manifestation)
- §§9.05–9.06 → Chapter 14 (formalities for inter vivos trusts; Statute of Frauds)
- §§9.05, 9.07 → Chapter 15 (formalities for testamentary trusts; Wills Act)
- §9.07 → Chapter 17 (revocable inter vivos trusts; Farkas v. Williams)
- §9.10 → Chapters 20–21 (resulting trusts; constructive trusts)
Forward, to Volume II. The applied interpretation of trust instruments, the litigation of contested manifestations, the standards of proof for undue influence and mistake in trust settings, the interaction of manifested intent with the trustee's construction and cy pres powers, and the deference rules governing settlor intent under UTC §§ 105–106 and 411–412 are reserved to Volume II. Volume II presupposes the manifestation-of-intent framework fixed here.
Transition to Chapter 10
Chapter 9 has fixed the first of the five substantive elements of trust creation: the requirement that the settlor manifest an intent to create a trust, measured objectively, tested against the three certainties, expressed through one of the three modes of manifestation recognized under UTC § 401, subject to the Statute of Frauds and the Wills Act, and defensible on the ordinary grounds of mistake, undue influence, fraud, and incapacity. Chapter 10 takes up the second element: the capacity of the settlor. Where Chapter 9 has asked what the manifestation must consist of, Chapter 10 asks who is competent to make it — the mental, legal, and, in the testamentary case, statutory capacity requirements that must be present at the moment of manifestation for the manifestation to be effective. Chapters 11 through 13 will complete the elements of creation with res, ascertainable beneficiaries, and lawful purpose; Chapters 14 and 15 will treat the formalities in which the manifestation must be expressed for particular classes of trust.
Primary sources
- Uniform Trust Code (2000, as amended)
- Restatement (Third) of Trusts (2003–2012)
- Statute of Frauds (1677)