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express trusts
Fichas del conjunto (16)
- 1what is a trust?-division of ownership between a legal and an equitable owner
3 concepts;
1) legal interest
2) equitable interest
3) beneficial interest (can coincide with legal/equitable and sometimes neither) - 2categories of trustsexpress- bare and special
implied- constructive and resulting - 3what are bare (naked) trusts1) trustees- no active duties
-required to deal with property as directed by beneficiary
but; every trust involves passive and active duties
-every trust requires trustees to do as directed by beneficiary (saunders v vautier)
-generic description; trustees under no special obligation- nominees - 4what is a special trust-any trust which is not bare
-trustee under particular obligations as defined by trust instrument
(things required to do and not to do) - 5what is a constructive trust?-arises by operation of law
-unconscionable for the legal owner to retain beneficial ownership
-divided into;
1) institutional- traditional english approach
2) remedial- modern US approach - 6what is a resulting trust?-arises when an absolute owner of property transfers legal title to another
-but acquires separate beneficial interest as a result of equitable interest jumping back
-former absolute owner acquires (rather than retains) equitable interest - 7types of resulting trusts-generally said to be two types
1) presumed resulting trust
-voluntary conveyance
-purchase money
2) automatic resulting trust
-failed trust - 8what are the problems with classification?-definition of bare trust wide enough to encompass all imputed trusts
-usually adopt a 3fold classification
-express
-constructive
-resulting - 9what are the requirements of a valid express trust-someone must have capacity to create it
-3 certainties and beneficiary principle
-necessary formalities must be observed
-must be completely constituted or supported by valuable consideration
-must not infringe rules against perpetuity, inalienability and accumulation
-must not be contrary to public policy - 10capacity to create a trust-creator of express trust= settlor
capacity to create co-extensive with power to dispose of legal or equitable interests
-settlor must be of his/her own right;
-18yr+
-not mentally incapacitated
-minor can create trust of any property they own but it is voidable and can be repudiated when they reach 18 - 113 certainties and beneficiary principle1) certainty of itention:
-conduct not just wordes
-precatory words
-use of the word trust
2) certainty of subject matter:
-identify the property
-quantum each beneficiary is to receive
3) certainty of objects
4) beneficiary principle - 12necessary formalities must be observed-provided property is in the hands of the trustee
-no formalities required to create a trust of personalty
-although written evidence is necessary to prove the declaration of a trust of land
(S53(1)(b) LPA)
but if property not yet in hands of trustee you need to comply with whatever formalities necessary to transfer title to him/her
(trust not completely constituted until then) - 13must be completely constituted or supported by valuable consideration-completely constituted simply means property must be in hands of the trustee
-two basic ways to create a trust;
1) absolute owner declares himself trustee (property already in his hands then)
2) absolute owner transfers property to trustee to hold on trust for another
(property must be transferred to trustee before the trust can be completely constituted) - 14what if the trust is incompletely constituted?-if the property is not yet in the hands of the trustee there is no trust
-there is consequently nothing for equity to enforce
-equity will not get involved at this stage unless either the beneficiary or trustee have provided what equity deems to be consideration
-equity will not assist a volunteer - 15rules against perpetuity, alienability and accumulation1) fundamental paraadox:
-liberal property theory requires alienability which is achieved by individuals freedom to dispose
-but if that freedom is used to limit recipients rights future alienability is thereby restricted
2) common law (and statutes) response limits the time capital can be locked away in trusts
-perpetuity: rule against remoteness of vesting
-inalienability: rule against perpetual trusts
-accumulation: rule against excessive accumulation - 16trust must not be contrary to public policy-must not be used for
1) defrauding creditors
2) promoting racial/religious discrimination
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- Fichas sobre express trusts, creado por holmull el 09/05/2015.
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- holmull
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