Constructive trust
A constructive trust arises where an individual can establish that in spite of being the legal owner of an asset, that they only hold this asset on behalf of someone else. Constructive trusts are not common and in most cases a legal opinion will need to be sought to confirm the existence of such a trust. A constructive trust is imposed on a person by a court whenever the court considers that it would be unconscionable to deny another person's claimed interest in that property. As a constructive trust is always determined by a court, the terms of the court order need to be examined to determine the interests in the property of the parties.
The private trusts control test and source test (where applicable) are to be applied to constructive trusts. This is irrespective of when the constructive trust was created.
Implied trust
An implied trust (and a resulting trust) arises where an individual can establish that in spite of being the legal owner of an asset, that they only hold this asset on behalf of someone else. These mainly relate to situations where a person has purchased property in the name of another person. Implied trusts are not common and in most cases a legal opinion will need to be sought to confirm the existence of such a trust. The private trusts control test and source test (where applicable) are to be applied to implied trusts. This is irrespective of when the implied trust was created. Special care should be taken to ensure that the implied trust is not a testamentary trust or a protective trust.