Formalities is the second ingredient required for the formation of valid trust.

formalities includes
certain evidential requirements which proves the existence of trust or subsequent disposition. You
need formalities for the execution of trust and for trust creation. Formalities are statutory
requirements of form that must be satisfied if existence of trust is to be proved in court. These
formalities are evidence which the court demands from you if you want to prove trust existence or
enforce that trust.

S53 (1)(b) LPA 1925--------------creation of trust for land----------immovable property.

States whenever there is a trust which is being created over a land then it has to be evidenced
manifested or proved in writing.

S53 (1)(b) is same as s 7 of statue of frauds 1677 whose primary aim was to prevent fraud. The effect
of failure to comply with 53 (1)(b) results in trust being valid but unenforceable so it can be criticized
as being a procedural requirement. The authority for this is Gardner v Rowe. The purpose of this
section is to avoid fraud. The fact that a trust is valid but unenforceable make oral trust useless for
the beneficiary. However, because trust as valid, court will at times enforce such a trust.

S 40(1) LPA 1925: lack of written memorandum did not render a contract void but merely
unenforceable by the court A.W Scott maintained that S 40 (1) is in false analogy with S 53(1)(b)
since S 40 (1) apply to contract for sale interest in land.

The reason for declaring a trust valid in case of --- compliance with s 53 (1) (b) is to avoid trustee
from taking the trust property because otherwise he would claim it as a gift e.g if there is a trust
created on land but settlor did not write it anywhere so trustee may claim it as a gift due to failure of
settlor to comply with S 53 (1) (b) so trustee may use this section as fraud by saying that if it was a
trust then why settlor did not write it. so in that situation court may enforce such a trust by
considering evidence in order to avoid any fraud by trustee,

Now the question raised is that whether parole evidence or oral evidence be accepted if no written
evidence be available. parole evidence may be allowed in such situations because equity did not
allow any staute to accomplish a fraud.

Rouchefaucauld v Boustead

This case may provide as an exception to S 53 (1)(b) since parole evidence was considered and
accepted. Defendant held estate on trust for women until she paid her payments back which the
defendant paid to the bank in order to release claimant mortgaged property.

Held:

A statue which is designed to prevent a fraud cannot be used as an instrument to commit fraud.
Therefore, in situations where trustee tries to commit a fraud by using S 53 (1)(b) in his favor, he
would not be allowed and oral unenforceable trust will be enforced. Equity will not allow a statue to
be use as an instrument for fraud. So the court allowed parole evidence.

Analysis: even if letters (words) did not satisfy S7 of 1677 act the parole evidence was still admissible
and as a whole of evidence taking together established that the defendant was the trustee and
plaintiff was entitled to decree. There is a fraud on the part of the person to whom the land has
been conveyed but denied the trust and claimed land as his own and statue did not prevent this
fraud, therefore, a person claiming land conveyed to another may prove by parole evidence that it
was so conveyed on trust for claimant.
By relying upon Re Case, the cases like Banister v Banister & Paragon Finance Thakerer were
decided that were termed as being of constructive nature as they arose by proof of evidence of
declaration of trust.

Writing S 53 (1)(b)

It can be some writing that is it can even be on a tissue paper, wall or another form. There is no
requirement of formal writing and no requirement of stamp paper be satisfied. By this leniency it
may be said that court is more willing to enforce trust. statue say nothing about the time when
written evidence must come in to being. It can be post declaration e.g trust in Gissing v Gissing Lord
Diplock argue that does statue provides that declaration itself be in writing? There exists a leniency.
It needs to be in writing there is no formal requirement of stamp paper which applies here.

S 60 (3) LPA 1925--- voluntary conveyance on land does not apply here

Court are more willing to enforce a trust under section 53 (1)(b). whenever a property (land) is
transferred or voluntary conveyed then presumption of resulting trust will not apply in favor of
settlor and property would go to trustee. Comparatively in cases of personal property the
presumption of resulting trust automatically kicks in in favor of settlor so S 60 (3) encourages fraud
in cases of land as oral trusts are enforced from preventing the trustee to commit fraud and parole
evidence being accepted.

When s 53 (1)(b) and S 60 (3) LPA 1925 are read together one can safely concluded that the trustees
of an oral trust are place in a very beneficial position where they keep the property for themselves
because in either case the property will not be given to beneficiaries nor it would revert back to
settlor so court adopted an oral evidence so that a trust could be proved.

Yondon in his article stated that S 53 (1)(b) LPA 1925 is created for the purpose of channeling
cautioned evidenced and prevention of fraud.

S 40 (1) LPA 1925 stated lack of written memorandum did not render a contract void but merely
unenforceable by the court.