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STATUTE OF FRAUDS

STATUTE OF FRAUDS. Basic Idea. Under certain circumstances, a trust must be evidenced by a writing. Why? Whom does the writing requirement protect?. Basic Requirement -- § 112.004. 1. Written evidence of the trust’s terms which is 2. Signed by the settlor (or settlor’s agent).

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STATUTE OF FRAUDS

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  1. STATUTE OF FRAUDS

  2. Basic Idea • Under certain circumstances, a trust must be evidenced by a writing. • Why? Whom does the writing requirement protect?

  3. Basic Requirement -- § 112.004 • 1. Written evidence of the trust’s terms which is • 2. Signed by the settlor (or settlor’s agent).

  4. Exceptions • 1. Oral trust if all below are true: • Personal property • Trustee is not the settlor • Trustee is not the beneficiary • Settlor expresses trust intent prior to or simultaneously with transfer

  5. Exceptions • 2. Self-declarationif all below are true: • Personal property • Settlor states in writing that settlor holds property in trust, even though the writing does not comply with normal requirements.

  6. Exceptions • 3. Part performance • If alleged trustee acts like a trustee, alleged trustee estopped from denying existence of trust.

  7. Special rule if trust in writing • All changes and any revocation must also be in writing, even if trust could have been oral originally.

  8. Standing to raise Statute of Frauds • 1. Alleged trustee • Thus, can carry out a trust even if Statute of Frauds defense exists (e.g., oral trust of land). • 2. Trustee in bankruptcy

  9. Notarization • Not required. • But, prudent practice so trust may be recorded.

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