N.C.P.I.—Civil 865.55

The (state number) issue reads:

"Was (identify property) transferred to (name alleged trustee) to be

held under an express trust for the benefit of (name alleged

beneficiary)?"

You will note that in this issue I have used the word "trust." A

trust is a legal relationship between persons. A trust exists when one

person has agreed to accept a transfer of certain property to handle in a

particular way so as to benefit another person. An "express trust" is

simply a legal relationship created by an agreement "expressed" between

the parties. The agreement can be expressed in spoken words. It can be

expressed by definite conduct. It can be expressed partially in writing

and partially by spoken words or conduct.3 It does not matter how the

legal relationship involving an express trust is created as long as the

parties have expressed this agreement.

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by clear, strong and convincing evidence,4

four things:5

First, that (name alleged settlor) manifested an intention6 to create

a trust. Whether a person intends to create a trust is determined by

considering his statements and his conduct in light of the circumstances

existing at the time. No particular form of words or conduct is necessary.

Neither the word "trust" nor any other technical term need be used. It is

sufficient if a person's words or conduct show his intent that certain

property belonging to him be taken by another and handled in a particular

way so as to benefit a third person.

Second, that (name alleged settlor) identified with reasonable

certainty (identify property) to be the property to be held in trust after

transfer.

Third, that (name alleged settlor) identified with reasonable

certainty (name alleged beneficiary)7 to be the person for whose benefit

the transfer was being made.

And Fourth, that (name alleged trustee) agreed or promised to hold

(identify property) in trust for (name alleged beneficiary) before the

transfer took place. A person "agrees" or "promises" when, by his words

or conduct, he communicates to another person an intention to hold the

property in accordance with that person's intentions. This communication

must be sufficient to justify the other person's understanding that a

commitment has been made. (The agreement or promise need not be

supported by consideration or a thing of value.)8 A trust does not arise if

the agreement or promise is made after the property has been acquired.

Finally, as to the (state number) issue on which the plaintiff has

the burden of proof, if you find by clear, strong and convincing evidence

that (identify property) was transferred to (name alleged trustee) to be

held under an express trust for the benefit of (name alleged beneficiary),

then it would be your duty to answer this issue "Yes" in favor of the

plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the defendant.