Express Trusts

Question 1

What are the requirements for an express private trust?

Answer 1

1) Three certainties (Knight v Knight)
2) Capacity to create a trust (i.e. over 18 and not have mental capacity issues)
3) The beneficiary principle
4) Must comply with the perpetuity rules
5) Comply with the Formalities
6) Must be validly constituted (constitution).

Question 2

What is certainty of intention?

Answer 2

1. Certainty of Intention: - It must be certain that a settlor intended to create a trust and subject the trust property to trust obligations

The word ‘trust’ does not have to exist in the declaration of trust. Equity looks to intent, not form. This can be seen in. Paul v Constance [1977] where an intention to create a trust can also be inferred from the conduct of the donor.

Precatory words MAY render a trust to fail. Since the case of Lambe v Eames (1871), the courts have generally made a distinction between the use of precatory and imperative words as precatory words may not indicate the intention for a trust to be created.

If there is no intention to create a trust (or power), the donee will take the property absolutely, as a gift (Lassence v Tierney (1849)).

Question 3

What is the effect of a lack of certainty of intention?

Answer 3

If there is no intention to create a trust (or power), the donee will take the property absolutely, as a gift (Lassence v Tierney (1849)).

Question 4

What is certainty of subject matter?

Answer 4

There are two elements to certainty of subject matter:

• it must be clear what property is held on trust; and
• the beneficial interests must be clear.

Shares are an exception to this.

Palmer v Simmonds (1854) - “the bulk of my estate” was held to be uncertain.

ϖ Boyce v Boyce (1849) — testator left 3 houses to W, instructing her to give to Maria whichever one Maria chose and to give the other 2 houses to Charlotte. Maria died before choosing. Held: the trust in favour of Charlotte failed for uncertainty as Maria made no choice.

Re London Wine Co Shippers Ltd [1986] — the company went into receivership. Its customers had purchased wine but left it in the company’s possession for storage and assumed they could recover their wine and that it was not part of the insolvent company’s assets. Held: the customers are not legal owners of any wine since the company did not allocate any particular cases of wine to any particular customers and did not ensure that it had on hand sufficient quantities to meet all the customers’ purchases should they all have demanded delivery all at once

Hunter v Moss [1994] Here the subject matter is an intangible property. A trust was effectively declared although there was no isolation of the 50 shares. Dillon LJ distinguished Re London Wine Co on the basis that, unlike cases of wine or other tangible property, these shares were indistinguishable from one another. Therefore, no segregation was required as holding any 50 of the 950 shares on trust would achieve the same thing.

ϖ Re Goldcorp Exchange Ltd [1995] — Similar to London Wine. Goldcorp agreed to give purchasers gold when they asked for it. Goldcorp became insolvent. Lord Mustill Held: while sympathising with the customers, a right in property cannot exist in the air, hovering over an undifferentiated mass of property. It can only exist in relation to property which is specifically ascertained (identified)

Question 5

Explain certainty of objects.

Answer 5

• The historical test for certainty objects for trusts, whether fixed or discretionary, was the complete list test: for a trust to be valid, one has to draw up a complete list of the objects - IRC v Broadway Cottages Trust [1955]

This, however, has changed with McPhail.

FIXED TRUSTS: The approach is still the complete list test. It must be possible to draw up a list of everyone in the “class” intended to benefit. Thus, the class must be both conceptually certain and evidentiary certain. The authority for this is IRC v Broadway Cottages Trust [1955].

DISCRETIONARY TRUSTS: For discretionary trusts, the test for certainty of objects is the ‘is or is not test’(aka the individual ascertainability)
McPhail v Doulton [1971] — Re Baden’s Deed Trust (No.1) Held (3:2): the ‘is or is not’ test in Re Gulbenkian’s ST is the test for certainty of objects for discretionary trusts.

Lord Wilberforce: the test is “can it be said with certainty that any given individual is or is not a member of the class?”

Re Baden’s Deed Trust (No.2) — the trust was for, amongst others, employees and their ‘dependents’ and ‘relatives’.Held: there is no conceptual uncertainty with the term ‘relative’. The clause is valid. There is certainty of object.

Conceptual certainty has been described as ‘linguistic or semantic certainty’ – in other words, a class of beneficiaries will be conceptually certain when the description enables the group to be defined clearly

It is important to distinguish ‘conceptual uncertainty’ from ‘evidential uncertainty’. Conceptual certainty relates to the certainty of the class; evidential certainty relates to the issue of whether or not an individual can be found or proven to be a member of the class. If a class is conceptually uncertain, the trust will be void, but evidential uncertainty will not defeat a trust

The rules:

1) Evidential uncertainty does not invalidate a discretionary trust since if a person is not proved to be within a class then he is outside it
2) Ascertainability problems do not invalidate a discretionary trust because they are valid reasons for trustees deciding not to exercise their discretions, and the court may distribute the assets on the basis that the beneficiary is dead
3) If a discretionary trust is not conceptually certain (is or is not), then the trust will be invalidated.

4)	If a discretionary trust is not conceptually certain, it cannot be administratively workable. Sometimes a trust can be conceptually certain but still administratively unworkable (e.g. everyone in the world except X)
R v District Auditor, ex p West Yorkshire Metropolitan County Council [1986] --- a trust with as many as two and a half million potential beneficiaries is, in my judgment, quite simply unworkable. Although there is no capriciousness, the size of the class was at work to invalidate the trust.

Question 6

How can you resolve uncertainty?

Answer 6

• Evidential uncertainty: can be resolved by the court in the last resort or, if provided, the trustees or the trustee’s widow etc.
• Apparent conceptual uncertainty: the court may impose a restrictive interpretation of the concept (Re Steel)
• Actual conceptual uncertainty: if a person acting as an expert is given power to resolve the matter, then the conceptual uncertainty may be resolved
  
  • Re Tuck’s ST [1977] — A baronet created a trust for future baronets who were married to a wife ‘of Jewish blood’ and who ‘continues to worship according to the Jewish faith’. If in doubt, ‘the decision of the Chief Rabbi in London of either the Portuguese or Anglo German Community… shall be conclusive’. It was contended that the Jewish faith and blood were too uncertain.

Held: the trust was valid.Lord Denning (dicta alone): a third person unconnected to the parties may be appointed as an expert to adjudicate whether a given person will or will not fall into the class of the beneficiaries!

ϖ Re Coxen[1948] — ‘to persons whom my trustee consider to be my old friends’.

Held: Jenkins J: “if the testator had insufficiently defined the state of affairs on which the trustee were to form their opinion, he would not have saved the condition from invalidity on the ground of uncertainty merely by making their opinion the criterion, although the declaration by the trustees of this or that opinion would be an event about which in itself there could be no uncertainty.

Question 7

What is a testamentary trust and an inter vivos trust? What is the difference?

Answer 7

INTER VIVOS TRUST - Also known as a ‘lifetime’ trust. A trust is said to be inter vivos if it is effective within the lifetime of the settlor. The person setting up an inter vivos trust is called a ‘settlor’.

TESTAMENTARY TRUST - Any trust which comes into effect upon the death of the person setting up the trust is said to be ‘testamentary’. The person setting up such a trust is called a ‘testator’ (if male) and a ‘testatrix’ (if female).

• Testamentary trust (made by a will) is: 1) intended to take effect on death 2) revocable during life 3) only effective upon death
• Inter vivos trust: : 1) takes effect during life, not death: contingent remainders take effect upon the creation of the trust. Nomination of beneficiary of death/pension benefit is also not a testamentary disposition, as it takes effect as a contract

Question 8

What are the rules of constitution for an inter-vivos trust? what

Answer 8

to constitute an inter-vivos trust, the settlor can either use one of two methods

METHOD A: Declaration of self as trustee

METHOD B - Transfer property to trustee
f
1. Declaration of self as trustee

o Where the settlor intends to make herself the sole trustee of the property, it is enough that she makes a valid declaration of trust since there is no need to transfer the legal title to another person.
o But, the two ways of constituting a trust – declaration and transfer – cannot be meshed together so that if neither is quite effective, but both are almost satisfied the court will not find the trust to be constituted.
♣ An intention to give will not be construed as an intention to declare oneself to be a trustee.
♣ “Equity will not assist a volunteer – Milroy v Lord (1862)

CASE - JONES V LOCK (1865)

and T Choithram International SA Pagarani [2001] WLR 1

2. Transfer of trust property to the trustee

Legal interests:

o Method of transfer of legal title varies depending on the property
♣ Legal estate in unregistered land – must be transferred by deed
♣ Legal estate in registered land – by registration
♣ Stocks and shares – appropriate form of transfer + registration of title in the share register
♣ Chattels – by deed of gift or by intention to give along with a delivery of possession (thus you can do this formally or informally)

o Worth emphasising that a failed attempt to transfer title will not be interpreted as a declaration of trust as seen in Milroy v Lord (1862).

Milroy v Lord (1860) – The settlor executed a voluntary deed, purporting to transfer 50 shares to Mr Lord to be held on trust for the claimants, and later handed to him the share certificates. The shares could only be transferred by registration of the transferee in the books of the bank and this was done.

Held: that no trust of the shares has been created in favour of the claimants. Turner LJ said that there is no equity to perfect an imperfect gift. In order to render a voluntary settlement valid, he needs to do everything required, thus, by transferring the property.

DISPOSITION OF EQUITABLE INTERESTS:

o The settlor can transfer equitable title to the trustee.
o This would create a sub-trust.
o To transfer a subsisting equitable interest, it must comply with section 53(1)(c) of the Law of Property Act 1925 – must be made in writing
o Numerous ways which this can be done. Only look into them if its relevant.

Question 9

When is a trust constituted?

Answer 9

A trust is constituted when the legal title to the trust property is vested in the trustee(s).

(Always begin by stating whether the trust has been constituted or not)

Question 10

What is the purpose of formalities in the creation of trusts?

Answer 10

1) Cautionary measure: property rights are valuable rights which should not be dealt with in a casual way, just in case the transferor did not give serious thought about its legal consequences
2) Evidential purpose against fraud: documentary evidence makes fraud more difficult on the presumption that forging is harder than lying.
3) Evidential purpose against administrative problems: problems may arise when oral transactions are complicated and have to be remembered and recorded. It also secures the location of the equitable interest.

Question 11

Explain the formalities of the creation of an inter vivos trust for personal property. Case?

Answer 11

o The basic rule is that a settlor can create a trust by manifesting an intention to create it - Paul v Constance [1977]

o So long as there is an intention, personal property will not require any formality. So, for trusts of personalty, such as money, shares, and chattels, writing is not required; an oral declaration of the trust is sufficient.

Question 12

How does a trust of property arise?

Answer 12

The basis for all trusts is conscience

• Understanding that you hold legal title without being intended to benefit from it is what makes a legal title holder a “trustee” rather than “outright owner”
• Trusts will normally arise because creating a trust is what an owner of property wants to happen
• A key tenet of the law relating to “express trusts”: A trust will only arise where it is clear that a trust is intended (That means, the result of what lawyers call a trust is intended, not that the settlor must know the jargon)

(plenary)

Question 13

Explain the formalities of the creation of a trust of in land?

Answer 13

ii) LAND:

o Declarations of trusts of land or of interests in land must be proved by writing that is signed by the person declaring the trust or agent (Law of Property Act 1925, s. 53(1)(b).)
o This applies to express trusts only, not resulting, implied or constructive trusts.
o If express trusts of land are not proved by signed writing, the trust is unenforceable rather than void.
♣ In other words, the trust is valid, but it cannot be enforced by the beneficiary. So, if the trustees wish to be bound by the trust, they can be, but they cannot be compelled to fulfil their trust obligations if they do not wish to do so.

Question 14

Creating a trust: What are the requirements?

Answer 14

1. Capacity to create a trust. Anyone over the age of 18, unless suffering from mental capacity can create an express trust.
2. The 3 certainties must be present.
3. The necessary formalities must be observed.
4. The trust must either be completely constituted or supported by valuable consideration.
5. The trust must not infringe the rules relating to perpetuity, inalienability and accumulation.
6. The trust must not be intended to defraud creditors or otherwise be contrary to public policy.

Question 15

What are the two ways of constituting an express trust?

Answer 15

2 ways of constituting an express trust inter vivos:

1. Declaration: where S=T
2. Transfer: where S is not T - transfer specific property to trustees for them to hold on trust.

Question 16

What are the formalities for testementary trust?

Answer 16

o Trusts of land declared by will must be evidenced by signed writing as per Law of Property Act 1925, s. 53(1)(b).
o Trusts of other property declared by a will do not have any specific formality requirements, but any testamentary trust must comply with the formality requirements under the Wills Act 1837 regardless of the nature of the property: if the will is not valid, then, generally, the trust will not be valid either.

s.9 of the wills act 1837 provides that the trust cannot be valid unless it:

• is in writing
• signed by the testator or agent
• also signed or attested to by 2 or more witnesses

These formalities are imposed to reduce the chances of mistake, fraud, and ill-considered and hasty dispositions of property by a will.

➔ Paul v Constance, 1977: here, there was no formal embodiment of trust being created (no document). Also no evidence of terms of trust - merely relied on oral evidence. Still, sufficed to show intention to create trust.

Question 17

What is the beneficary principle? What is the policy underlying this requirement? Key cases?

Answer 17

Requirement for a beneficiary capable of enforcing the trustees’ performance of their duties under the trust. KEY CASE: Morice v Bishop of Durham

• The policy underlying this requirement is that:
• The consciences of the trustees can only be controlled if there are beneficiaries who can bring the trustees to court when they have failed to perform their obligations.
• Thus, there must be a beneficiary to enforce the trustee’s duties under the trust.
• Additionally, a beneficiary acquires proprietary right in the trust property.
• It is this right which gives the beneficiary the locus standi to petition the court if the trustees fail to perform their duties.
• Important to distinct between ‘people’ and ‘purpose’ trusts.
• A people trust is a trust whose intention is to benefit identifiable people as beneficiaries as opposed to achieving some abstract purpose. If it’s a people trust – it satisfies the beneficiary principle. If it’s a purpose trust, without identifiable beneficiaries, it does not satisfy it.
• KEY CASES IN THE IDENTIFICATION BETWEEN PURPOSE AND PEOPLE TRUSTS:

o Leahy v Attorney-General for NSW [1959] – a gift in favour of an order of nuns was held void as a purpose trust.
♣ Question was whether this trust “for such order of nuns” was an abstract purpose for the benefit of the order of nuns or whether it construed to be a people trust for the benefit of the individual nuns.
♣ Decided that the bequest was for a non-charitable purpose trust, intended on its literal interpretation, for the abstract purposes of the order rather than for the benefit of any individual beneficiaries.

o Re Denley [1969] (more modern approach) – a sports ground was left for the recreational purposes of a company’s employees. The trust provided that the land ‘be maintained and used as and for the purpose of a recreation or sports ground for the benefit of the employees of a company and secondarily for the benefit of such other persons as the trustees may allow to use the same”
♣ Issue considered whether the transfer was void as a purpose trust for the maintenance of a sports ground, or as a valid people trust in favour of the employees of the company
♣ Lord Goff J: Held the trust valid because a trust in favour of the employees of a company was very similar to an ordinary discretionary trust.
♣ Held to be a people trust in that it fell within the validating ‘wait and see’ provisions of the perpetuities and accumulations act 1964.
o The strict approach in Leahy is said to be confined to abstract purposes where no human would take a direct benefit.

• In short, the beneficiary principle will be deemed to be satisfied in circumstances where there are identifiable beneficiaries who will take some benefit, if it is only indirect.
• The beneficiary principle ties in with the principle in Saunders v Vautier, which demonstrates that each beneficiary has an equitable proprietary right in the trust property.

Question 18

What is the basis for all trusts?

Answer 18

• The basis for all trusts is conscience. Understanding that you hold legal title without being intended to benefit from it is what makes a legal title holder a “trustee” rather than “outright owner”. Trusts will normally arise because creating a trust is what an owner of property wants to happen
  o The key case on this is Westdeutsche Landesbank Girozentrale v Islington LBC [1996]

Question 19

What is the perpetuity rule?

Answer 19

• Property must be vested in individuals within a recognized period of time, and, if it might not vest within that time, any interest in that property might be void.
• The purpose of this rule is to prevent wealth being locked away indefinitely, otherwise the rich will be in a position to control their assets for many generations
• The law on perpetuities has been reformed again by the Perpetuities and Accumulations Act 2009. which has introduced a single perpetuity period of 125 years Perpetuities and Accumulations Act 2009, s. 5(1).
• Section 5(1) applies even if the trust instrument specifies a different period – s5(2)
• The statutory perpetuity period does not, however, apply to purpose trusts. No perpetuity rule applies to charitable purpose trusts, since such trusts are, by definition, for the benefit of the public and so there is a public interest in such trusts potentially lasting forever.
• As such, the distinction between people and purpose trusts is significant.

Question 20

What is the consequence of the failure to comply with formalities in land?

Answer 20

Where a trust of land is declared orally, the statutory formalities will not have been satisfied and so the trust will not be enforceable by the intended beneficiary.

However, equity can sometimes intervene if a party relies on statutory requirements to perpetrate a fraud on the settlor or beneficiary.

Leading case on this is: Rochefoucauld v Boustead (1897), where C had insufficient funds to pay a mortgage. Her friend D, orally agreed to buy her estates in Ceylon to cover the mortgages and to hot in on trust for her subject to her paying off the purchase price. D then mortgaged the titles to the estate to secure his own borrowings, denying that he had bought the titles as trustee for C.
HELD: Equity will not allow a statute to be used as an instrument of fraud. The principle of the decision is that, in the case of fraud, oral evidence is admissible to establish the trust, in spite of the statute.

Question 21

What is the consequence of the failure to comply with formalities for a will?

Answer 21

Failure to comply with these formalities will lead to a failure to create a valid will or will trusts and therefore the testator will die intestate (voiceless).

Various mechanisms have, however, been developed by Equity to ensure that the strict formality rules for wills do not necessarily frustrate the testator’s intent.

i.e. The ‘doctrine of incorporation by reference: informal documents can be incorporated into a will if they are expressly identified by the will and if they existed when the will was executed.

Question 22

What is the exception to the rule “that equity will not assist a volunteer” or “that there is no equity to perfect an imperfect gift”.

Answer 22

There are two ways where equity can intervene to make a transfer effective:

i) The “rule in Re-Rose” - Where the donor has done everything in his power to transfer title
ii) The “rule in Pennington v Waine” - Where it would be unconsciousable for the donor to deny the gift,

Question 23

What is the rule that re rose established? What trust is created?

Answer 23

Where the settlor has done everything to transfer the title then the gift will be effective

Re Rose [1952] –It was held that if the donor has done everything necessary for her to do to make the gift, then equity will consider an equitable interest in the relevant property to have passed automatically, even if the donee is a volunteer. This principle is an exception to the rule that equity will not assist a volunteer.

• This departs from Re Fry[1946] where the donor had done everything in his power to transfer the shares, but the consent was conditional upon the Treasury, a third party. It was said the gift was incomplete and there is no equity to perfect an imperfect gift.
• Question is what sort of trust is created by Re Rose? Cannot be an express trust since the intention was for it to be a gift, so it lacked certainty of intention.

o Suggested that it is a: constructive trust – once the donor has done all that he can to complete the gift, it would be unconsciousable for him to deny the gift, so a constructive trust arises by operation of law.
o This approach would be consistent with the approach taken by the High Court of Australia in Corin v Patton [1990]

Question 24

What is the rule established in pennington v waine?

Answer 24

A gift can be enforced where it would be unconsciousable for the donor to deny the gift
Pennington v Waine [2002]

o This decision extends the Re Rose principle. It can be said that the intention of the court in Pennington was to give effect to a gift and because the courts of equity should not strike down gifts too eagerly, the Rose principle should be extended to protect this gift.

Question 25

When a gift has not been made validly when can equity enforce it?

Answer 25

When a gift has not been validly made, it can be enforced by equity. Three circumstances:

i) Donatio mortis causa
ii) The rule in Strong v Bird
iii) Proprietary estoppel

i) Donatio mortis causa

• Arose to create an exception to the rule that a testamentary gift must be made properly or else it will not be effective
• The gifts are made during the donor’s lifetime, made in expectation of immediate death and which are intended to take effect on the donor’s death
  o Also important that the donor intends to ‘give up dominion’ at the time of making his donatio mortis causa.
  o i.e. soldier lying dying on a battlefield gasps “I want my Sunderland AFC shares to be given to my second son”. This is not sufficient to make an ordinary transfer b/c of the formality of re-registering them under the Companies Act. However, this doctrine enforces such a gift.

i) The rule in Strong v Bird

♣ Provides that if a debtor is named by a testator as an executor of the estate of the one to whom he owed the deft, that chose in action is discharged – a gift is made of the amount of the debt.

• Has been applied to perfect imperfect gifts, so even if the donor doesn’t fall within the rule in Re rose, as long as he or she had the intention to make an immediate gift of the property, and still had that intention upon death, it will be perfected if the done obtains title to the property by becoming executor or through being the administrator of the donor’s estate.
• If the donee is to be a trustee, the rule in Strong v Bird can operate to constitute the trust.

i) Proprietary estoppel

o Remedial doctrine that either seeks to compensate a claimant for detriment suffered as a result of relying on the representation made by the defendant, or to give effect to the expectations raised by having acted in reliance on a representation.

Re Basham [1987] – only oral evidence of a gift of a house to a stepdaughter by her stepfather during his illness. Her claim was that she had been induced into thinking that by acting to help the dying man through his illness, she would acquire an interest under her stepfather’s will. The stepfather died intestate (unheard) and the intestacy rules would have passed the property to his nieces, who were his blood relatives.
Held: given that the stepdaughter had acted to her detriment in reliance on her stepfather’s promise of a gift of the house, the doctrine of proprietary estoppel would pass the property to the stepdaughter rather than the nieces.

Question 26

WHAT ARE FIDUCIARY MERE POWERS: POWER OF APPOINTMENT:

Answer 26

• This gives the holder of the power (i.e. the trustee) the ability to exercise that power without any obligation to do so. They are only obliged to consider whether or not that power should be exercised.

¬ i.e. the trustee MAY advance £1,000 to X annually”

• The fiduciary exercising a fiduciary mere power cannot act purely capriciously in relation to that power. Rather, the trustee is under an obligation to exercise that power reasonable and to be able to justify its exercise.
• ¬ In Re Hays ST [1981] Megarry VC said:

“that a mere power is very different from an ordinary trust obligation. Normally the trustee is not bound to exercise it, and the court will not compel him to do so. However, this does not mean that he can simply ignore it. He must from time to time consider whether or not to exercise the power and the court can direct him to do this.”

Question 27

WHAT IS THE TEST FOR CERTAINTY OF OBJECTS IN RELATION TO FIDUCIARY MERE POWERS?

Answer 27

• The leading case is Re Gulbenkian [1968] – established the ‘is or is not’ test.
• It reversed the previous rule which required the trustees to be able to draw up a complete list of beneficiaries.
• In Re Gulbenkian the HoL said that for a trust to be valid, the trustees must be able to say, that any person was either within the class of beneficiaries or not within the class of beneficiaries.
  o As Lord UpJohn put it “the trustees, or the court, must be able to say with certainty who is within and who is without the power.

Question 28

Why was a relaxed approach taken in Gulbenkian in regards to the “is or is not test” replacing the complete list test?

Answer 28

• The reason for the relaxed approach taken is that the complete test would invalidate any power for which it would be impossible to produce a complete list of the objects within the power, whereas the is or is not test means that the trustees do not need to know the identity of all of the objects in advance and can instead wait to examine each postulant as circumstance arise.
• In relation to mere powers, the trustee is not compelled to carry out her duties under the trust, consequently it was considered inconsistent to require the trustee to draw up a fixed list of the potential beneficiaries in whose favour the discretion could be exercised when the trustee was not technically even required to perform her power.

Question 29

What are personal powers?

Answer 29

• A personal power is a power given to an individual without making that person subject to any fiduciary duty in regards to the exercise of that power. An example would be:

o “ So that X, as an old family friend, shall be entirely free in a personal capacity to pay as much of the £1,000 as he sees fit to any of my grandchildren whom he deems worthy of it, with the power to retain the whole of that £1,000 for the remainder beneficiary.
o This would be personal in that it is explicit that X is to exercise his discretion, not as a fiduciary, but as an ordinary person without the constraints of demonstrating that he has acted in according with the terms of fiduciary (this is event from the words “entirely free in personal capacity”.

• In Re Hays ST [1981] it was found that the holder of a personal power cannot have it invalidated on the grounds of uncertainty of objects – no matter how vague it may be.
• It’s a power that is personal to them and they can choose to exercise it or not. They are not acting in a fiduciary capacity.
  o Unlike a fiduciary power who must reflect upon whether to exercise it or not. Similarly, the holder of a discretionary trust power must be diligent in surveying the range of objects and can’t act capriciously.
• They still can be held void if the power if the holder acts beyond the scope of that power. (i.e. power to spend £1000 but spends £1200).

Question 30

WHAT ARE THE DIFFERENT FORMS OF UNCERTAINTY?

Answer 30

1. Conceptual
2. Evidential
3. Ascertainability
4. Administrative workability

Conceptual – Where the meanings of the words used in the trust are unclear. Judges will not try to make trusts invalid but they should “judge the degree of certainty with some measure of common sense and knowledge”. So if the matter is sufficiently certain for the purpose, then that should be enough. However, in light of Re Gulbenkian [1968] it is not that clear this approach is the dominant one.

Evidential – For instance, when it is simply impossible to prove as a question of fact whether or not a beneficiary falls within a class. Refers not to the meaning of words involved, but to the question whether or not the claimant can prove that she falls within the class of beneficiaries.

o When it’s impossible to prove whether they fall within the category, it does not invalidate a trust or power of appointment. There is no good reason to do so if someone fails within a sensible trust provision just because they can’t product proof of it.

Ascertainability – Where it is possible to understand the concept/words in the trust, but impossible to find the beneficiaries – maybe because they
have died, remarried and changed names etc.
o Will not necessarily render the trust invalid unless the greater part of the trustee’s obligations are so difficult to perform that the trust must be considered to be incapable of being validated.

Administrative unworkability – The nature of the trust is so impracticable to carry out. This has the effect of making it invalid. Additionally, part of the requirement is that the trust is drafted so its possible to carry out the administration of the trust property. This will also be invalid.
o This principle applies to trust powers rather than to mere powers of appointment.
o R v District Auditors ex p West Yorkshire (1985)

Question 31

What are a beneficary’s rights in an express trust?

Answer 31

The Rule in Saunders v Vautier (1841) - Demonstrates that each beneficiary has an equitable proprietary right in the trust property.

• The rights of beneficiaries have two characteristics:
  1. A proprietary right in the trust fund
  a. That property right forms part of the beneficiary’s estate; but it does not form part of the trustee’s personal estate. This has the result that if a trustee were to go into insolvency, then the trust property would remain the beneficiary’s property and would not fall to be distributed among the trustee’s creditors. Therefore, trusts provide protection against an insolvency for their beneficiaries.
  b. The beneficiary’s proprietary rights also permit her to trace after her property and to assert right over any property by which the original trust property has been substituted (Pilcher v Rawlins (1872) and against anyone who participated in the breach of trust despite not being trustees
  2. Personal rights against the trustees in relation to the property management of the trust’s affairs.
  a. If the trust property should be lost as a result of some breach of trust, then the beneficiary also has a right against the trustee personally to compensate the beneficiary’s loss.
• Where there is more than one beneficiary, and they are all sui juris (over 18 and sound of mind), all those beneficiaries can act together and call for the delivery of the absolute title in the trust fund from the trustees. They are able to override the settlor’s expressed wishes regarding the property.

o The significance of the principle in Saunders v Vautier is that it establishes that the beneficiary has a right in the trust fund itself and not merely personal claims against the trustees or against the settlor.

• Stephenson v Barclays Bank [1975] – Permitted a beneficiary to take delivery of her divisible share in the whole of the trust fund without needing to act together with the other beneficiaries.
  o This approach required that the property be capable of being divided and that the beneficiary’s entitlement is calculable.
• Courts enforce a beneficiary’s rights not only against the trustee, but against other people, provided they have notice of the existence of the trust. Only a bona fide purchaser of the property without notice of the trust, can take good title in the property. Even then, the beneficiary’s rights would consequently attach to the sale proceeds paid by the purchaser.
  o In this way, the beneficiary’s rights are rights which attach to the trust property and protect the beneficiaries against the claims of third parties to that property
  .
• Any trustee who commits a breach of trust will be subject to a personal obligation to replace any property lost to the trust or to pay over its equivalent value in cash.
  The purpose of this equitable justification is to consider the defendant trustee to act consciously over their actions and to hold any trustee to account to the benefactress of a trust

Question 32

What are a beneficiary’s rights under a discretionary trust?

Answer 32

• Central question: whether the objects of a discretionary trust could be said to have any proprietary rights in that trust property before the trusee exercises their discretion to allocate property to them.
• 1. If all the beneficiaries act in concert, they can exercise the rights under the principle of Saunder v Vautier. The effect of this would be that they have proprietary rights in the trust property.
     • They can rely on the Saunders v Vautier principle if:

1. the discretionary trust power obliges the trustees to exhaust all the trust property by transferring it to the objects and;
2. if a complete class of objects can be defined, then the objects will be able to act together and rely on the principle in Saunders v Vautier to direct the trustees in how to use the trust property.

• An individual object, however, has no property rights until property is appointed to her by the trustees.
o Individual objects of a discretionary trust will not have individual rights b/c their rights over trust property are in competition with one another.
o Additionally, the objects in a discretionary trust have a power to ensure that the trustees exercise their discretion properly.
o
What rights do the objects of the discretionary trust have to control the trustee?

• Lord Wilberforce in Gartside v IRC [1968]
  o He has a to have their claim to property under the trust be considered by the trustees and;
  o To have that claim protected by the court against any abuse or breach of trust by the trustees

If a fiduciary mere power:

• The objects of a fiduciary mere power only have mere expectations that they will have property appointed to them as per Re Brooks’ Settlements Trust [1939]
  o Consequently, they have no proprietary rights in any property before an appointment is made to them.
  o Clear distinction from the discretionary trust power where the objects have some proprietary rights corresponding with being entitled under a trust,
• That property right forms part of the beneficiary’s estate; but it does not form part of the trustee’s personal estate. This has the result that if a trustee were to go into insolvency, then the trust property would remain the beneficiary’s property and would not fall to be distributed among the trustee’s creditors. Therefore, trusts provide protection against an insolvency for their beneficiaries.
• If the trust property should be lost as a result of some breach of trust, then the beneficiary also has a right against the trustee personally to compensate the beneficiary’s loss.
• The beneficiary’s proprietary rights also permit her to trace after her property and to assert right over any property by which the original trust property has been substituted (Pilcher v Rawlins (1872) and against anyone who participated in the breach of trust despite not being trustees.
• Beneficiary will always have a right to compel the trustees to carry out the terms of the trust.
• Also have the right to demand an account from the trustee and to hold the trustee liable for any breach of trust.
• Still, beneficiaries occupy slightly different positions depending on the terms of the trust. The most important distinction will be between vested rights and rights which rely on some eventuality provided for under the terms of the trust.
  o Under a mere appointment, the beneficiary will have no vested rights in any property until the beneficiary exercises her power of appointment in favour of that beneficiary. The right of the beneficiary is merely an unenforceable hope that the trustee will decide to exercise her power in favour of the beneficiary. A power of appointment does not give the beneficiary any right in the money.