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Report No. 66

8.16. Difficulty in determining existence of trust.-

The main difficulty in these cases, however, is to discover what test the courts will apply in deciding whether or not the party intended to contract as trustee. The inquiry plainly involves the construction of the contract and the special circumstances in which it is entered into. This will be evident from the cases where the court found a trust1, in contrast with the cases where it did not2. The courts do not readily find that a party intends to constitute himself a trustee.

1. (a) Webb (in re:), 1941 Ch 225;

(b) Forster's Policy (in re:), (1966) 1 WLR 222.

2. Foster (in re:), (No. 1) (1938) 3 All ER 357; Green v. Russell, (1959) 2 QB 226; Cook's S.T. (in re:), 1965 Ch 902; and Beswick v. Beszvick, (1966) 3 All ER.

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