Trusts and the Statute of Frauds

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  • Lunchtime Seminar

Presented by Professor Robert Chambers, Thompson Rivers University, Canada

The Statute of Frauds 1677 and its successors around the common law world dictate the formalities required to create contracts and trusts relating to interests in land. It is well understood that non-compliance with the statute makes a land contract unenforceable and it is commonly assumed that the same is true for trusts of land. However, non-compliance makes a trust unproveable. It does not exist and can have no legal significance. Nevertheless, an informal declaration of trust is a fact that can be used for purposes other than proving the existence of an express trust. It is also commonly assumed that the writing requirements for trusts of land are almost meaningless because of the judicial exception that prevents someone from relying on the statute to fraudulently deny the existence of the trust. While it is fraud to deny the trust after agreeing to be a trustee or receiving the land with knowledge or suspicion that the transaction is in breach of trust, it cannot be fraud to do so if the land was acquired honestly without knowledge of the trust. The honest recipient should be entitled to the protection provided by the statute.

Robert Chambers is a professor in the Faculty of Law at Thompson Rivers University. He practised as a barrister and solicitor in Alberta before obtaining his D.Phil. from the University of Oxford under the supervision of Professor Peter Birks. He has been a senior lecturer at the University of Melbourne and a professor at the University of Alberta, King’s College London, and University College London. Rob's main research and teaching interests are property, trusts, and unjust enrichment. He is the author of Resulting Trusts (Oxford: Clarendon, 1997) and An Introduction to Property Law in Australia, 4th ed. (Sydney: Lawbook Co., 2019), a co-author of Oosterhoff on Trusts, 9th ed. (Toronto: Thompson Reuters, 2019), and a member of the editorial boards for the Journal of Equity and Trust Law International.