The Capture Instrument
Constructive Trust Instrument
(Drafted from the standpoint of a private, living man standing in equity. Replace bracketed text with the correct particulars.)
1 Parties
1.1 Settlor / Beneficiary (Living Man) Name: [Given-Name:Family-Name] Status: A living man, sui juris, appearing only in his private capacity and not as a corporate or statutory person.
1.2 Recipient / Constructive Trustee Name (or Entity): [Recipient Name] Capacity: Presently in possession of the Property (defined below).
2 Recitals
A. The Settlor, being a living man, delivered to the Recipient the Property described in Schedule A.
B. The Recipient personally assented to accept that Property under the terms set out herein and, by that assent, undertook fiduciary duties toward the Settlor.
C. Equity regards as done that which ought to be done; therefore, upon assumption of said duties the Recipient became and is hereby captured by operation of equity as constructive trustee of the Property for the sole benefit of the Settlor.
3 Appointment & Acknowledgment of Fiduciary Duty
3.1 The Recipient acknowledges that:
(a) He/She/It has come into possession of the Property by reason of the confidence reposed in him/her/it by the Settlor; and(b) He/She/It now stands in a fiduciary relation to the Settlor concerning that Property.
3.2 The Recipient accepts that equity impresses upon the Property a constructive trust, effective immediately upon the first moment of possession.
3.3 The fiduciary duties include, without limitation:
(i) Duty of loyalty—holding the Property solely for the Settlor’s benefit; (ii) Duty to segregate and preserve the Property; (iii) Duty to render full account on demand; (iv) Duty to transfer or restore the Property to the Settlor instanter upon written request.
4 Trust Property
4.1 “Property” means all assets listed or described in Schedule A and any traceable proceeds therefrom.
4.2 Title in law may stand in the Recipient’s name; equitable title remains vested solely in the Settlor.
5 Duration
The constructive trust endures until the earliest of:
(a) Delivery of the Property (or full proceeds thereof) back to the Settlor;(b) Written release executed by the Settlor; or(c) Further order of a competent court of equity.
6 Accounting & Access
6.1 The Recipient shall keep distinct books and records relating to the Property.
6.2 Within 7 days of any written demand, the Recipient shall provide the Settlor with a complete accounting, including locations, custodians, and balances.
7 Default
Upon any breach of these fiduciary duties, the Recipient consents that:
(a) Equity may trace the Property into any hands (except that of a bona-fide purchaser for value without notice); and(b) All profits or gains derived from misuse of the Property belong in equity to the Settlor.
8 Governing Maxims
8.1 This instrument is construed solely in equity.
8.2 Where conflict arises, the maxims of equity prevail over any conflicting provision of statute or code.
8.3 Equity will not permit a wrong without a remedy.
9 Execution
Signed as a deed in equity on this [Day] day of [Month, Year].
Settlor / Beneficiary (living man)Recipient / Constructive Trustee__________________________________________________________________(Autograph)(Autograph / Seal)
Witnessed by:
Name: [Witness] Signature: ________________________ Date: ___________
Schedule A – Description of Property
[List cash amounts, securities, documents, chattels, digital assets, etc.]
How the Fiduciary Appointment “Captures” the Recipient
Delivery + ConfidenceThe Settlor transfers possession while expressing reliance on the Recipient’s integrity.
Recipient’s AssentBy accepting the role (explicitly or implicitly), the Recipient forms a fiduciary relationship.
Operation of EquityThe instant a fiduciary takes possession for another’s benefit, equity imposes a constructive trust—even if no express words of trust are used.
Consequences• Legal title becomes split from equitable title.• All future dealings with the Property are constrained by trust duties.• Breach triggers equitable remedies: accounting, tracing, disgorgement, specific restitution.
Practical Use
• Hand this document to the Recipient at or shortly after delivery of the Property.• Retain a signed original.• If breached, produce the instrument in any court of equity to evidence the fiduciary relationship and invoke trust remedies.