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STATUTE OF FRAUDS - PowerPoint PPT Presentation


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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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Presentation Transcript
basic idea
Basic Idea
  • Under certain circumstances, a trust must be evidenced by a writing.
  • Why? Whom does the writing requirement protect?
basic requirement 112 004
Basic Requirement -- § 112.004
  • 1. Written evidence of the trust’s terms which is
  • 2. Signed by the settlor (or settlor’s agent).
exceptions
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
exceptions1
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.
exceptions2
Exceptions
  • 3. Part performance
    • If alleged trustee acts like a trustee, alleged trustee estopped from denying existence of trust.
special rule if trust in writing
Special rule if trust in writing
  • All changes and any revocation must also be in writing, even if trust could have been oral originally.
standing to raise statute of frauds
Standing to raise Statute of Frauds
  • 1. Alleged trustee
    • Thus, trustee can carry out a trust even if Statute of Frauds defense exists (e.g., oral trust of land).
  • 2. Trustee in bankruptcy
notarization
Notarization
  • Not required.
  • But, prudent practice so trust may be recorded in deed records.