Solomon v McCarthy: unwritten trusts of land

Unwritten trusts of land have always been troublesome, given that they prima facie infringe the writing requirement set out in section 53 (1) (b) of the Law of Property Act 1925. Ways around the problem exist, so that an unwritten trust may be recognised, but those ways usually rely on an implied trust (which does not require writing under section 53 (2) of the Law of Property Act 1925) or the court to disapply the writing requirement by invoking the maxim that equity will not permit a statute to be used as an instrument of fraud. The latter principle has been recognised as applying where a settlor claims that he himself is also the beneficiary. Recently, the county court in Bristol considered whether that maxim might be used to support an unwritten trust of land made by a settlor in favour of a third-party beneficiary and, for the first time in a reported case, came to the conclusion that it could not.