[2025] EWCA Civ 1211

The judge addressed the consequences of the absence of writing at §201 to §213 of his judgment. At §203 to §206 he cited textbooks in which the consistent view expressed is that an unwritten declaration of trust is valid but unenforceable by the beneficiary against the trustee. He observed, at §208, that it has long been understood – certainly so far as the Statute of Frauds is concerned – that the necessary writing may be subsequent to the declaration of trust and, once it exists, the trust can be enforced, noting that this was recently confirmed by HHJ Paul Matthews sitting as a judge of the High Court in Taylor v Taylor [2017] EWHC 1080 (Ch); [2017] 4 WLR 83 at §50.

At §210 he said:

“I do not, however, understand the statements in the textbooks to say that a declaration of trust is valid even if there is no later writing (appropriately signed) which manifests and proves the trust. That would be to ignore the requirement in section 53(1)(b). To be enforced a trust of land must be manifested and proved in writing (appropriately signed).”

NIOC’s argument before the judge (as recorded at §211) was that s.53(1)(b) went to enforceability by a beneficiary of the declaration of trust. The judge said, however (at §211), that the present case involved a trustee and beneficiary seeking to enforce the trust against a third party creditor of the trustee, and there is no language in the section which suggests that the manifestation in writing is not required in the context of this case. Accordingly, he concluded at §213 as follows:

“For these reasons I must conclude that the answer to Issue 1 is that at the time of the August Transfer NIOC was the beneficial owner of NIOC House. The trust relied upon by NIOC and the Fund cannot be established. English law has very strict formalities with regard to the proof of a declaration of trust respecting land and requires such a trust to be “manifested and proved by some writing signed by some person who is able to declare such trust”. The trust relied upon by NIOC and the Fund with regard to NIOC House was not so manifested and proved. I must also conclude that the answer to Issue 2 is that the August Transfer was at an undervalue. It was not justifiable on the basis that the Fund beneficially owned NIOC House.”

He reiterated this conclusion at §224, finding that NIOC and the Fund cannot justify the undervalue by the requisite proof that NIOC was subject to a trust in favour of the Fund. Since CGC had established that the Transfer was undertaken for the purpose of putting NIOC House beyond the reach of CGC, the court had the power, pursuant to s.423, to make such order as it thought fit to restore the position to what it would have been if the transaction had not been entered into.