Equity and Trusts, Express Trusts

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(Equity and Trusts) Flashcards on Equity and Trusts, Express Trusts, created by scott.james.smit on 04/16/2013.
scott.james.smit
Flashcards by scott.james.smit, updated more than 1 year ago
scott.james.smit
Created by scott.james.smit about 11 years ago
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Question Answer
IRC v Broadway Cottages Certainty of Objects 'list certainty' test within Fixed Trusts
Re Benjamin if an identified beneficiary cannot be found, their share of the equitable interest can be divided among the other Bs within a Fixed Trust.
McPhail v Doulton -Discretionary Trust -Any given postulant test -it must be possible to say of any given C from the trust that the person 'is or is not' within the class of B. -in result that any one person cannot be categorised as falling either within or without of the class, the trust will fail
mere power of T (fiduciary power) power given to T which enables them to act if they choose to do so, but which does not oblige them to act.
Re Hay's Settlement Trusts Mere power of a trustee (fiduciary duty) T must be able to justify any decisions they make and cannot act capriciously in the decisions they make.
Re Gestner Settlement -concerned with discretionary settlement comprising of a mere power of appointment. -very wide class HELD: no uncertainty in so far as it is quite certain whether particular individuals are object of the power
IRC v Broadway Cottages -Settlement made in 1950s directed sum of £80,000 to be held on trust for benefit of all or any members of a wide class of B, including a charity (BCT) -Validity brought into question by IR when considering for charity exemption from income received -CA HELD: where it was stated that 'it would be impossible to ascertain a list of B at any given time' list certainty test
Re Gulbenkian's Settlement Trusts 'any person or persons whose house or appartments or in whose company or under whose care or control or by or with whom he, G, may from time to time be employed or residing' HELD: valid. any given individual is or is not a member of the class'
Re Baden No.2 -at first instance it was held 'relatives' and 'dependants' were not too uncertain and deed was valid -CA upheld this but thought the words 'is not' was hard to tell for relatives (e.g. DNA test?) -relatives are next of kin
personal power power given to a person who is not a T to decide in their absolute discretion how to deal with T property.
Administrative unworkability this occurs where the words of the trust are not unclear, but the definition of beneficiaries is so hopelessly wide as not to form 'anything like a class'' (McPhail v Doulton)
Capriciousness (whimsically) this may be held to invalidate both mere powers and discretionary powers under a trust.
Paul v Constance Certainty of intention -Claim brought by Mrs C arguing £ left in bank account belonged to her after his death -Mr C had previously left to live with Ms P -Account intended for joint use -'this money is as much yours as mine' HELD: intention was to hold £ on trust for himself and P as beneficiaries
R v District Auditors ex parte West Yorkshire CC example given of a power where; the terms of the trust negate any sensible intention on part of the settlor (e.g. for the residents of Greater London) HELD: not capricious as it was perfectly reasonable to want to help the young and unemployed of west Yorkshire.
Trust Document Solutions to problems of uncertainty 1) provide for an expert to resolve matters of uncertainty 2) give trustees power to resolve uncertainty on their own (Re Leek) 3) ensure that the trust deed contains a cotman v bougham clause so that failure of one part of a trust for uncertainty does not invalidate the whole trust 4) ensure that deed provides an express 'git over' in event that part of the trust fails for uncertainty
what is a bare trust A bare trust is one in which the trustee holds P on trust for 1 B absolutely. MUST be possible to identify B
what is a fixed trust A fixed trust is there the trust fund is to be held on trust for a fixed group of B. E.g. 'to be held for my two children now living'
How to create a simple trust settlor (absolute owner) transfers legal title to trustee and equitable interest to the beneficiary
what is a discretionary trust? a discretionary trust gives the trustee the power to make appointments of the trust property to one or more of the beneficiaries in accordance with the terms of the trust.
power of appointment the trustee is afforded the power of being able to transfer given amounts of trust fund property to an identified class of beneficiaries.
what is the difference between a discretionary trust and a power of appointment? in a discretionary trust the trustee is obliged to act whereas with powers of appointment he is merely enabled to act.
Rule in Saunders v Vautier gives beneficiaries the right to instruct trustees to transfer the property to them absolutely. demonstrates that B have proprietary rights and not just personal rights against trustees
Paul v Paul Irrevocability of a trust. H & W entered into marriage settlement. MS created rights for couple and others as B. Marriage unsuccessful and couple sought to undo trust and recover P for themselves. HELD: Trust cannot be undone
what does constituting the trust mean? this is where the settlor vests the legal title in the trustee(s).
LPA 1925 s53(1)(b) manifestation of trust must be in writing and signed by someone who is able to declare a trust, or by his will.
Milroy v Lord -deed was created that purported to transfer some shares in Co. to L for him to hold on M's benefit - transfer was to be carried out by an agent -requirement of Co. law was that there could be no transfer of shares unless transfer was registered in Co's register -there was no registration, therefore M had no right in shares -M tried to argue that intention ought to mean current owner should be trustee. HELD: cannot hold a failed gift as a declaration of trust without there being clear intention to create a trust.
Re Rose Mr Rose had done everything he could have done to create a trust. HELD: trust allowed to stand as constructive trust as Mr Rose had done everything required of him to create the trust.
Knight v Knight Stated that there must be three certainties present in order to create a trust: -certainty of intention -certainty of subject matter -certainty of objects
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