Remigius Nwabueze, ‘Illegality and trusts: trusts-creating primary transactions and unlawful ulterior purposes’

INTRODUCTION
Patel v Mirza provides an interesting opportunity to re-examine the role of illegality in the enforcement of trusts. Though Patel was a case on unjust enrichment and contract, its ratio, to the effect that a restitutionary claim would not be necessarily undermined by an underlying illegality, would definitely resonate with a claim in trust that has an unlawful ulterior purpose. I argue that the role illegality plays in the law of trusts is often exaggerated. I hypothesise that a properly constituted trust, which arises from the primary feature of a transaction between the parties, should be enforced despite some credible evidence that the trust has an illegal ulterior purpose. Similarly, a trust that arises by operation of law from a given primary feature of a transaction should be enforced notwithstanding an underlying illegality …

€ (Westlaw)

Remigius N Nwabueze, ‘Illegality and trusts: trusts-creating primary transactions and unlawful ulterior purposes’ [2019] Conveyancer and Property Lawyer 29.

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