Is the cestui que trust real?

Land Title Practice Manual (Queensland) TrustManualltpm-part-51Highlighted (Part 51 pdf) (complete manual file url) (page url)

Part 51 – Trusts


Trusts Generally
The only instruments or documents that may be registered to record trustees are:
• Form 5 or 5A – Transmissions by Death (as personal representatives);
• Form 1 – Transfer to Trustees;
• Form 14 – General Request.
The Form 14 may record a transmission by bankruptcy or a vesting that gives effect to an order made under the Trusts Act 1973 (or another Act).
Generally, there are three parties to any trust instrument or document. They are the settlor, the trustee and the beneficiary.
The settlor is the person who creates the trust. The trustee is the person in whom the legal estate vests. The beneficiary (also called the cestui que trust) is the person for whose benefit the trustee holds the property. The beneficiary holds the beneficial interest in the property.


The Beneficiary
The beneficiary under a trust (also called the cestui que trust) is the person for whose benefit the trustee holds the legal estate. The beneficiary can be a minor, an adult, an organisation such as a sporting body or a corporation.
When using a Form 20 – Trust Details Form for a schedule of trusts, if a beneficiary is a minor the date of birth must be shown in Item 2 Schedule of Trusts Details in the Form 20 – Trust Details Form.
There can be several beneficiaries at once, either as joint tenants or as tenants in common, but if they are created by separate deeds of settlement, Items in the Form 1 – Transfer to Trustees must identify the trust instruments or documents by name or reference. A trustee may also be one of the beneficiaries, but a sole trustee cannot be the sole beneficiary. There is no trust where there is a sole trustee who is the sole beneficiary because there is no separation of the legal and equitable interests. If a sole trustee becomes the sole beneficiary of a trust, then the legal and equitable interests merge, the trust no longer exists, and the beneficiary holds the property absolutely.
The beneficiary does not have an immediate right in relation to the property (except in the case referred to in the preceding paragraph) although he/she may have rights as against the trustee.


Miscellaneous rules of law
(1)  .  .  .  .  .  .  .  .
(2)  Except as provided by the Trustee Act 1898 , no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, shall be held to be barred by any statute of limitations.


DIVISION 13.—Recovery of Property on Determination of a Life or Lives.
18 and 19 Charles I I c. 11—The Cestui que Vie Act, 1666. 6 Anne c. 72 (or c. 1 8 ) — T h e Cestui que Vie Act, 1707.

38. ( 1 ) Every person having any estate or interest in any property determinable upon a life or lives who, after the determination of such life or lives without the express consent of the person next immediately entitled upon or after such determination, holds over or continues in possession of such property estate or interest, or of the rents, profits or income thereof, shall be liable in damages or to an account for such rents and profits, or both, to the person entitled to such property, estate, interest, rents, profits or income after the determination of such life or lives.


From the Commonwealth of Australia Constitution

117 Rights of residents in States.

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

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