Equity and Trusts in Australia

Enforceability of an express trust depends on proof of certainty in three matters: intention to create a trust, subject-matter, and objects. In addition to satisfying the certainty requirements and not infringing public policy prohibitions on creating trusts, an express trust must have been validly created (or constituted). That is, the trust must be properly declared, and title to the trust property must be properly vested in the trustee. Additionally, some trusts must comply with statutory formalities. Unless they meet these requirements they will be unenforceable or void, depending on the statutory provision in question.