Formalities Flashcards
What does s.53(1) require?
a) Declaration of trust of land must be in signed writing.
b) Disposition of any equitable interest must be in signed writing.
c) Disposition of an existing equitable interest must be in writing and signed by the person disposing of it.
What were the facts of Rochefoucauld v Boustead?
Woman transferred land on oral trust terms; no written declaration of trust.
What principle was established in Rochefoucauld?
Trust enforced despite lack of writing under s.53(1)(b).
Equity prevents statute being used as an instrument of fraud.
Oral trust can be upheld if denying it would be unconscionable.
What was the legal issue in Vandervell v IRC?
Whether s.53(1)(c) applies when legal and equitable interests are transferred together.
What was Lord Upjohn’s view in Vandervell?
s.53(1)(c) applies to bare dispositions only.
Where both legal + equitable interests are transferred, no writing is needed.
What did Lord Wilberforce add in Vandervell?
If the beneficiary instructs trustees to transfer the full title to a third party, no need for compliance with s.53(1)(c).
Intention + direction = effective transfer.
What happened in Choithram v Pagarani?
Donor declared a gift to a trust but didn’t transfer the assets before dying.
What was the outcome in Choithram?
Held: Valid trust because donor declared himself a trustee.
Where a settlor declares themselves trustee, no need to transfer property to another.
Equity perfects the intention when possible.
What happened in Pennington v Waine?
Steps taken to transfer shares, but formalities incomplete.
What principle came from Pennington?
Despite missing formalities, the court upheld the gift.
Unconscionability to deny it once donor had done all they intended.
Notoriously flexible — later cases have limited its scope.
What was the main issue in Hudson v Hathway?
Can an email satisfy formal writing requirements under s.53(1)(c)?
What was held in Hudson v Hathaway?
Yes — if an email is signed (even electronically), it can satisfy s.53(1)(c).
But strict compliance with formalities is still required.
