Rouchefoucald v Boustead
In Rochefoucauld v Boustead (1897), Lindley LJ said ‘that the Statute of Frauds does not prevent the proof of a fraud; and that it is a fraud on the part of the person to whom the land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself’.
Section 53(1)(b) of the Law of Property Act 1925 provides that ‘a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will’. S53(1)(b) indicates that in cases where there is a purported oral declaration of trust, it is not void without the element of writing, but merely unenforceable against the trustee. This requirement of formality can be traced to the forerunner of s53(1)(b); s7 of the Statute of Frauds 1677. It is a ‘proof’, not a ‘validity’ formality; so the declaration renders the express trust into existence and binds parties to it, however, since the beneficiary cannot prove that the trust exists, there is no way for them to force the trustee to carry it out (Penner, Law of Trusts).
However, in Rochefoucauld v Boustead, an oral express trust was enforced against the trustee without fulfilling the writing requirement. The Court of Appeal upheld that ‘equity will not allow a statute enacted to prevent fraud to be used as an instrument of fraud’. Therefore, in order to prove the express trust, parole evidence was included, despite the statutory requirement of written evidence in s53(1)(b) (Penner, Law of Trusts). This is known as the ‘doctrine of Rochefoucauld v Boustead and it is reflected in this quote given by Lindley LJ. He is essentially declaring that equity abhors the use of statute as an instrument of fraud. The core function of the statutory formality rule is to prevent fraud being practised upon a trustee by those who fabricate allegations of trust. But, as Lindley LJ points out in this case, the insistence on formality is not
Section 53(1)(b) of the Law of Property Act 1925 provides that ‘a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will’. S53(1)(b) indicates that in cases where there is a purported oral declaration of trust, it is not void without the element of writing, but merely unenforceable against the trustee. This requirement of formality can be traced to the forerunner of s53(1)(b); s7 of the Statute of Frauds 1677. It is a ‘proof’, not a ‘validity’ formality; so the declaration renders the express trust into existence and binds parties to it, however, since the beneficiary cannot prove that the trust exists, there is no way for them to force the trustee to carry it out (Penner, Law of Trusts).
However, in Rochefoucauld v Boustead, an oral express trust was enforced against the trustee without fulfilling the writing requirement. The Court of Appeal upheld that ‘equity will not allow a statute enacted to prevent fraud to be used as an instrument of fraud’. Therefore, in order to prove the express trust, parole evidence was included, despite the statutory requirement of written evidence in s53(1)(b) (Penner, Law of Trusts). This is known as the ‘doctrine of Rochefoucauld v Boustead and it is reflected in this quote given by Lindley LJ. He is essentially declaring that equity abhors the use of statute as an instrument of fraud. The core function of the statutory formality rule is to prevent fraud being practised upon a trustee by those who fabricate allegations of trust. But, as Lindley LJ points out in this case, the insistence on formality is not