Equities - Formalities Flashcards
Gift
The three certainties
Trust with self as trustee
1) Three certainties
- Intention is ascertained by words or conduct (Paul v Constance)
- Merely precatory words will not suffice (Re Adams & Kensington Vestry)
2) Beneficiary principle
3) Rules against perpetuity
- For discretionary trusts: Rule against remoteness of vesting - max 125 years
- For Non-charitable purpose trusts: Rule against ailienability 0 limited to 21 years, or allow trustees to spend all trust capital on the purpose.
4) Formalities for declaration
- Land: Evidenced in writing, signed by the transferor (53(1)(b)) LPA
- Other: None needed (writing desired)
Trust with someone else / others as trustee(s)
1) Three certainties
2) Beneficiary principle
3) Rules against perpetuity
4) Formalities of declaration
5) [and] transfer of property in correct manner
Formalities (testamentary trust)
s.9 Wills Act:
- In writing, signed by testator
- Signature must be made or acknowledged in the presence of two witnesses present at the same time
- Each witness must attest and sign the will or acknowledge their signature in testator’s presence
Formalities (inter vivos trusts)
Generally no formalities (Paul v Constance)
Exception: Land
- s.53(1)(b) - a declaration of trust for land must be manifested and provided by some writing, otherwise unenforceable.
- must be signed by the person declaring the trust
Exception - s.53(2) If one can establish that an implied trust was constructed, then it suspends the formalities of s.53(1)(b).
Grey v IRC
Disposition of already subsisting equitable interest requires application of s.53(1)(c) i.e. must be in writing.
Vandervell v IRC
Exception to Grey v IRC - disposition could be oral if absolutely entitled beneficiary instructs trustee to transfer legal title with the intention of also transferring the equitable title. - use SvV
Saunders v Vautier
Beneficiary can claim benefit from trust if 18y/o and of sound mind and no contingencies.
