trusts pt 2 Flashcards
1
Q
4 ways a failure to dispose of a beneficial interest creates a resulting trust
A
- No trusts declared- vandervell v irc
- Failure of a specific purpose- Barclays v quistclose
- Failure of a trust- re diplock
- Incomplete disposal of the beneficial interest- re Andrews
2
Q
presumption of advancement
A
- POA is stronger than the presumption of a resulting trust
- Where certain relationships exist, a voluntary transfer is presumed to be by way of gift
- If there is no POA because the transaction isn’t between husband and wife, then the immediate presumption is one of resulting trusts
- Husband and wife relationship- when a husband makes a voluntary transfer of property to his wife, he is presumed to be making an outright gift to her- so no trust arises- Pettitt v Pettitt
- Also covers both parents and people in loco parentis
- May be rebutted by contrary evidence of the transferors intention at the time of the transfer- but this may be hard if the transaction was based on an illegal purpose- Gascoigne v Gascoigne
3
Q
pettitt v pettitt
A
husband and wife
when a husband makes a voluntary transfer of property to his wife he is presumed to be making an outright gift to her so no trust arises
4
Q
Gascoigne v Gascoigne
A
- cant rebut POA with contrary evidence of intention if the transaction was based on an illegal purpose
5
Q
constructive trust
A
- One that comes into being without the need to comply with any formal requirements.
- S53(2) LPA
- Trust that arises as a result of behaviour on the part of the constructive trustee that equity will not tolerate
- Provides the means by which the legal owner of property is compelled to hold it on trust for the beneficiaries
- Trust comes into being at the time of the relevant conduct and is independent of intention- based on wrongdoing
- Applies to fiduciaries making unauthorised profits
6
Q
proprietary estoppel
A
- Acts as a remedy to right a wrong
- A way of creating a proprietary interest in property in the absence of following the correct formalities
- Representation, reliance and detriment – gillett v holt
7
Q
trusties duties
A
- invest the fund
- recover debts
- distribute trust property in accordance with the terms of the trust
- protect the trust assets
8
Q
is the trustee responsible for the breach?
A
- All trustees have a duty to act
- If there is a solicitor it doesn’t reduce the liability of other trustees unless the solicitor is seen as controlling them- head v gould
- A trustee cannot be held liable for breaches of trust that were committed before he took up appointment- re Strahan
- A trustee cannot be held liable for breaches committed after he has retired- unless done to facilitate the breach
9
Q
target holdings v redferns
A
- there has to be a causal link between the breach and the loss of money in order for the trustees to be held liable
10
Q
can trustees claim relief from liability
A
- Liability is joint and several
- Retiring trustee can seek indemnity from his co-trustees and/or beneficiaries but will only protect them if theyre of full age and capacity
- If a beneficiary is involved in a breach they can’t then sue later- re somerset
- Beneficiaries can grant a release of liability
- Stat relief
- Express in trust instrument- Armitage v nurse
11
Q
armitage v nurse
A
- express in trust instrument that they can claim relief from liability
12
Q
limitation period for a beneficiary to claim for a breach
A
- 6 years after the breach
- or 6 years after their interest falls into possession
13
Q
tracing prob question
A
- breach of fiduciary duty
- mixed or unmixed? is the prop still identifiable
- cant be inequitable
14
Q
advantages of prop rights
A
- Doesn’t depend on the solvency of D
- Can claim asset even if its inc in value
- Can claim interest from the date of the receipt of the property, personal is just from date when liability is settled
15
Q
when cant you trace in equity
A
- innocent volunteer
- equitys darling
- money used to pay debts/improve land
