Trusts : validity issues and the consequence of invalidity

Abstract

This thesis represents an attempt to trace the principal issues of validity in relation to constitution of a valid trust under Maltese Law. The thesis should reflect the position under Maltese law in relation to the mentioned issues once the proposed amendments to the Trusts Act and other Laws which will be effected by virtue of these amendments come into force. Substantial reference is made to Common law doctrine in relation to the principal validity issues concerning the constitution of a valid trust, however, the thesis should not be considered as a comparative study. I have tried to trace the traditional principles of validity currently existing under Common Law, and to analyse whether such provisions will eventually apply under Maltese law once the mentioned proposed amendments to the Trusts Act and other Laws come into force. In the concluding chapter of this thesis I tried to analyse the consequences of invalidity of a trust. Whilst every Chapter shall consider the various different requisites for having a valid trust under Maltese law once the proposed amendments come into force, in the last Chapter I have endeavored to consider what happens if each of the requisites mentioned in the first four Chapters is not adhered to. In Chapter 1 also considered certain aspects of Maltese Law which might apply in respect of the settlement of property under trusts. In this respect I have also considered how a settlement could be impeached by virtue of the Actio Pauliana due to the fact that the intention of the settlor was that of defrauding or prejudicing a legitimate creditor. The aim of this thesis is to clearly delineate the requisites for the constitution of a valid trust. If these requisites are adhered to the trust is valid. The consequence of invalidity is clearly exemplified in the last chapter. However, the considerations of the last Chapter should hopefully indicate to the reader the importance of having a trust which is valid from its inception.