Flashcards
Formalities Equity and Trust
Cards in this deck (20)
- 1Testamentary trustUpon death of settlor. Usually in will.
- 2s. 9 Wills Act 1837In writing and signed by testator/testatrix
Signature must be made or acknowledged in presence of 2 witnesses present at the same time.
Each witness must attest and sign the will or acknowledge their signature in testator's presence. - 3Paul v Constance (1977)Generally no formalities inter vivo trusts EXCEPT s. 53 LPA 1925
- 4S. 53 (1) (b) LPA 1925Any declaration of new trust of land must be in writing - signed. Otherwise unenforceable.
- 5Hodgson v Marks (1971)s. 53(2) LPA 1925 - implied trusts are immune to formalities.
VP takes in lodgers after death of husband. One says transfer legal title to him to save tax etc. With understanding that she will be able to own and live in it. Sells to Marks. Hodgson doesn't have legal title and nothing in writing to evidence trust. Implied resulting trust found. - 6Inter vivos trustsNo formalities with anything other than land - as long as satisfy 3 certainties.
Additional formalities of s. 52(1)(b) and 3 certainties for land.
Not enforceable until it is in writing. Seen to take effect from point of declaration. - 7s. 53 (1) (c) Law of Property Act 1925Disposition
Subsisting equitable interest
In writing
signed
Otherwise void.
Validity requirement. - 8s. 53 (1) (c) LPAOnly applies where trust is already in place.
Pre-existing trusts of everything!
If beneficiary of any kind of trust then needs to be complied with. - 9Timpson's Executors v Yerbury (1936)Diff disposition methods:
Assign directly to 3 p
Direct T to hold for 3 P
Contract for valuable consideration
Declare himself trustee of it for 3 P - 10Assign directly to 3rd party53(1)(c) applies.
- 11Grey v IRC (1960)Direct T to hold for 3 P.
Mr Hunter - 6 grandchildren.
Dispose of some shares to be held on trust. Wanted to avoid stamp duty.
Paul v Constance - personal property no formalities.
Shares to be held on trust for Mr. H. Grey = trustee H has equitable title. H instructs G to hold ET verbally in = shares for grandkids. ET moving from H to 6 grandchildren. Disposition of equitable interest therefore should be in writing.
Later evidential writing was upheld to comply - should not have been. - 12Vandervell v IRCTrust already in place. Shares belonged to V but held on trust by Nat Prov Bank for security for ex-wife. V wants to make charitable gift - transfer to Royal College of Surgeons. Clears with ex -wife. Tells bank to transfer to RCS.
RCS do not pay income tax so IRC sue V. No compliance as not in writing.
Legal title changes hands and equitable title goes with it. Impliedly collapses trust and passes as a gift to RCS. - 13Neville v Wilson (1996)Contract for valuable consideration.
s. 53 (1) (c) LPA 1925 - contract probably doesn't apply. - 14James Penner TheoryIf beneficiary declares himself trustee for 3 P - Sub trust.
Do not have to comply with 53(1)(c) because just declaring sub trust and formalities and certainties apply. - 15Nelson v Greening & SykesA subtrust means that it is unlikely that 53 (1) (C) is needed.
- 16Sheffield v SheffieldSub trust just needs formalities and certainties as Nelson
- 17Re Paradise Motor Co LtdDisclaimer is avoidance and not disposition so is not subject to 53(1) (C)
- 18Paul v Constance (1977)Inter vivos (lifetime) trusts may be declared informally. Won't take effect until validly constituted - until valid legal title has transferred to the intended trustee.
- 19s. 53(1)(b) LPA 1925Land or interest therein in writing by person able to declare such trust or by will.
Non compliance will = unenforceable not void. Once in writing takes effect from date of oral declaration. - 20s. 53 (1) (c) LPA 1925Disposition of equitable interest subsisting at TIME and IN WRITING. Not evidenced in writing.
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- Equity and Trusts Flashcards on Formalities Equity and Trust , created by Laura Millward on 06/11/2017.
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