Express Trusts - constitution Flashcards
Maxims
Equity will not perfect an imperfect gift
Equity will not assist a volunteer
Equity will not spell out a trust from a failed gift
Equity will not strive to officiously to defeat a gift
‘the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property & render the settlement upon him’
Milroy v Lord 1862
Intention on the settlors part to bring about a transfer will not suffice
McArdle v O’Donohue 1999
Steps must be taken to vest the property in trustees
CC v NC 2012
Transfer of land requires…
deed
Transfer of equitable interest requires…..
Valid assignment - Kekewich v Manning 1851
failed to do everything necessary to vest the property
Re Fry 1946
reformulated ‘everything necessary’ to ‘everything in their power’
Re Rose 1952
If he did everything in his power to vest the property, it would be unconscionable to let him go back on his word
Mascall v Mascall 1984
The transferor gives up the property, he has no power over stamping & signing etc
Brown & Root v Sun Alliance 1996
Settlor did everything in his power (IRE)
Pennington v Wayne 2002
Settlor needs to do all they can (IRE)
Devoy v Hanlon 1929
Declaration of trust by settlor…
‘the court must be satisfied that a present irrevocable declaration of trust is made’ - leaving no reasonable doubt
‘where a declaration of trust is relied on, the court must be satisfied that a present irrevocable declaration of trust is made’ - leaving no reasonable doubt
Re Cozen 1913
Willingness to depart from strict legal formalities - settlor did not do everything necessary OR in his power
Pagarani 2001
’ as much mine as yours ‘ sufficient declaration
Paul v Constance 1977
Rule in Strong v Bird 1874
Incomplete gift becomes complete when the beneficiary becomes executor & legal interest becomes theirs
Test in Strong v Bird 1874
- Not a testamentary gift - donor intended to give inter vivos
- Legal title becomes vested in the donee by operation of the will
‘the executor is entitled to hold the property for his own benefit…. the testator’s death perfects the imperfect gift’
Re Stewart 1988 Neville J
Didnt apply to properties promised inter vivos by his will
Re Wilson 1933
Illegitimate daughter failed in her claim
Re Gonin 1979
Significance:
The claim of beneficiaries under a will may be displaced by the donees prior equity
