The Role of True and Counterfeit Intentions in Creating Trusts

Abstract

The aim of this paper is to illustrate Denis Ong’s facility for identifying the hard questions of trusts law with reference to his analysis, in Trusts Law in Australia, of a settlor’s intention to create a trust. As we will see, this is not a simple matter of ascertaining, from writing or other evidence, that an intention to create a trust has been manifested. A court may have to go further in some cases and consider whether the settlor possessed a genuine intention to create a trust, or whether the intention is, in some sense, counterfeit. This may be because the putative trust is a sham. Even if it is not a sham, there may be other reasons why the arrangement put in place by a settlor cannot be characterised as a trust. Recent decisions, considered later in this paper, have highlighted the distinction between true and counterfeit intention.