equity and trust law Flashcards
what is the purpose of equity
equity is the means by which a system of law balances out the need for certainty in rule making on the one hand, with the need for sufficient judicial discretion to achieve fairness in individual factual circumstances on the other - clements and abass 2009
what are the two major conceptualisations of equity
thereotical and legislative
what is trust
the trust is the most important creation of equity and is a rorm of ownership of things which allows someone to manage proorty fir someone fit - pearce and stevens 2015
what is the theoretical approach
relate to the ideas of morality, justice and fairness
what ia the legalistic approach
body of law which developed out of common law,
what did lord dudley v lady dudley say
now equity is no part of the law but a moral virtue which qualifies, moderates and reforma the rigour, hardness, and the edge of the law, and is the universal truth. equity therefore does not destroy the law, but assists it
history of equity
writ, royal writ system, provisions of oxford 1258, establishment of the court of chancery, court of chancery location fixed under edward the third in westminister hall, it had two purposes, court of chancery became independent under richard the second, conflict of common law and the chancellor, fusion, 1873 lrod chancellor lord selborne issued the supreme court of judicature bill, a no of provisions would be amended unto the supreme court of judicature act of 1875, court of chancery cease to exist, mew courts established having dual jurisdiction
maxims of equity
equity will not suffer a wrong to be without a remedy, equity is equality, delay defeats equity, he who seeks equity must do equity, he who comes to equity mist come so with clean hands, equity acts in personam, equity will not perfect an imoerfect gift, equity follow the law, equity regards ad done that which ought t be done, where the equities are equal the first in time prevails
he who seeks equity must do equity
if an individual is looking to seek some kind of relief from equity, they must themselves act in a wy which is fair towards the opposing party
equity follows the law
unless there is some reason to not to do so, equity will follow the rules of the common law.
where the equities are equal the first in time prevails
where there may be two claims in equity which both have merit in their own right. the person who makes their claim first will be the one which has priority over the other
equity acts in personam
it looks to the person in each and every individual case
individuals in a trust
settlor, beneficiary, trustee
express trusts
created expressly
chrcteristics of a trust
protect soem kind of property, entail transfer of oegal title to the trustee, trustee has duty to manage said assets, trust can be created during life or after death, trusts maybe expressly made or implied through a multitude of different systems, equitable obligations between the trustee and beneficiary, trustee powers outlined in the terms of the trust
main requirements of an express trusts
certainty of intention, certainty of objects and subject matter
how are express trysts created
through a deed, a will, an oral agreement etc
bare trust
tristee has no duty but to hodl the property on trust until the beneficiary decides they want a conveyance of the property.
executed trust
which the settlor has given clear direction as to the tranfor of legal title to any of the beneficiaries.
discretionary trust
it will give the trustee a certain amount of power in reltion to how they will divide the trust property
secret trust
created on the death of the settlor
name implied trusts
resulting trust and constructiev trusts
resulting trust
where there ia sime title or property hekd by one person, but that the true owner of all or part of the property is another individual on the basis of their contribution
what is a fiduciary relationship
is someone who manages money or proerty for someone else
power of appointment
obligation not present, if power of appointment not exercised the result will be the default of the appointment, may or or mayeb a fiduciary relationship
discretionary trust powers
has an obligation on the part of trustees to distribute the property given prescribed: mettoy pension trustees ltd v evans, fidiciary relationsuo between trustee and beneficiary
kight v knight 1840
estate was an absolute gift. established the legal test of the three certainties
certainty of intention
it must clear that they have the intention to create said trust anot not say any other kind of relationship
the high commisioner of pakistan v prince mukarram jah 2020
trust created by a third party - not certainty of intention
lambe v eames 1871
precatory language or words - not certainty of intention
certainty of subject matter
include land, money, perosnal property, debt, equity securities
hunter v moss 1994
intangible assets such as shares does not need to be clearly delimited from the most to form the subject matter - certainty of aubject matter sufficed
re london wine co 1986
wine would not necessarily be delimited for each customer. there was no indication as to which exact bottle of wine each customer owed. no certainty of objects
re gulbenkian’s st 1970
lord upjohn outlined the test for establishing the certainty of objects
: when determining the certainty of objects for a foxed trusts, it is a complete list of beneficiaries which must be cited and when determining the certainty of a powet an identofication of a person as veing part of class that is required.
conceptual certainty
expressed language that is used to describe the beneficiaries or the class of beneficiaries : re barlow’s ill trusts 1979
conceptual uncertainty
no certainty of objects
fixed trusts
one in which the property and the beneficiaries and the distribution is clearly defined
what is the general rule for a fixed trust
for certainty of objects the general rule is that fixed trust requires ascertainable beneficiaries
what is evidential certainty
only required for the creatio of a fixed trust. A trust can fail on the basis that there may be an impossibility in the aquisition of information pertaining to who is the benefiary. example of this is haley and mcmurtry
what is a discretionary trust
an amount of discretion that is given to the trustee in the distribution of proerty shares to a class of beneficiaries
do you need a complete list of names in a discretionary trust?
no, mcphail v doulton 1971
what are the 3 tests laid in the case re baden 1973
- Stamp lj- strict and literal applicaition of the class ought to be applied.
- magan lj- application of the substantial numbers test. This suggests that the is or is not within the meaning of the trust does not imply that any person is or not in the trust
- sachs lj- the claimant should be able to prove they are within the class
what is the consitution of a trust
ways and method by which the trustee takes legal title of the proerty held on trust
milroy v lord 1862
shares had not been registered in the name of the trustees- no trust created
methods of constitution of a trust
case of richards v delbridge 1874 highlights 2 main methods by which satisfy the consitution of a trust. 1. through the transfer of legal title e.g. conveyance of proerty or through 2. trustee making self declaration that the property will be held on trust for the beneficiary.
how to transfer legal title to the trustee
nature of property willd etermine method which constitutes the establishment of a trust.
how to transfer legal title if the trust si in land
method of conveyancing. unregistered title; examine deeds to property back 15 yrs. Except short term leases s54 2 lpa 1925
how to tranfer legal title if the trust is chattels
tangible property. Transfer of chattel require physical delivery of the item to the trustee.
what are corporate securities
debt and equity interests in a company e.g. bonds and shares
how to transfer legal title if the trust is corporate securities
s.770 of companies act 2006 a company will be notified of an instrument of title for those who wish to register as owners of the shares in their business. includes share certificate.
process of self declaration
settlor can declare themselves the trustee if the proerty through the use of language or through use of conduct: paul v constance 1991
what is the exception to the self declaration
in context of kand s52 1 b lpa 1925 requires evidence of a trust in writing which is signed by the settor.
example of an equitable interest
fortuitous vesting
what is fortuitous vesting
Principle tells us that, where there has been a promise to transfer property but this is not achieved, and if the proerty is vested in another capacity in the hands of the person to whom transfer is received, then it has been held that the perfecting of transfer may have taken place. Bird v strong
