The Guides to Social Policy Law is a collection of publications designed to assist decision makers administering social policy law. The information contained in this publication is intended only as a guide to relevant legislation/policy. The information is accurate as at the date listed at the bottom of the page, but may be subject to change. To discuss individual circumstances please contact Services Australia.

4.12.3.53 Other Non-Express (Implied) Trusts

Date of effect

This topic has effect to controlled non-express (implied) trusts from 1 January 2002.

Summary

This topic contains information on the following:

  • other non-express (implied) trusts, and
  • assessment of other non-express (implied) trusts.

Other non-express (implied) trusts

There will be limited circumstances where it may be appropriate to find the existence of a non-express (implied) trust that is not a constructive or resulting trust. These types of trust will not be common. They occur where the court presumes from the circumstances that a trust was intended. In most cases a legal opinion will need to be sought to confirm the existence of such a trust.

Note: Special care should be taken to ensure that the implied trust is not a testamentary trust (4.12.3.30) or a protective trust (4.12.3.40).

Assessment of other non-express (implied) trusts

Generally the private trust and companies rules are to be applied to resulting trusts. This is irrespective of when the resulting trust was created.

Explanation: A non-express (implied) trust arises where an individual can establish that in spite of being the legal owner of an asset, that they only hold this asset on behalf of someone else.

Policy reference: SS Guide 4.12.3.50 Background to Non-Express (Implied) Trusts

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