16. Resulting and constructive trusts

Abstract

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. A resulting trust refers to a trust under which, in certain circumstances, the beneficial interest jumps back to the settlor. Resulting trusts are created in accordance with the presumed intention of the settlor or donor and are enforced against the personal wishes of the constructive trustee. Under s 53(2) of the Law of Property Act 1925, the creation or operation of resulting, implied or constructive trusts is not subject to any written formality. This chapter deals with resulting and constructive trusts, and how they differ from each other. It examines how the law of resulting trusts applies to the many contexts in which they occur, the nature of constructive trusts, presumed resulting trusts on a voluntary transfer, constructive trusts in comparison with fiduciary liability to account, illegality and the presumption of a resulting trust, the presumption of advancement and the range of situations in which constructive trusts are to be found. The chapter also discusses presumed resulting trusts where express trusts do not exhaust the whole of the beneficial interest.