Formalities and constitution Flashcards
Which property will require specific formalities for a declaration of trust?
Land
When will constitution not be considered?
Self declaration of trust
What are the formalities for an express trust of land as set out in s53(1)(b) LPA 1925?
- manifested and proved
- by some writing
- signed by some person who is able to declare such trust
- Or by will
Does the declaration of trust and the writing for a trust of land have to be contemporaneous?
No
What are the consequences of not complying with the s53(1)(b) requirements for a trust of land?
Trust is unenforceable
If a trust becomes enforceable, what is the consequence for the beneficiaries?
They can enforce their rights for the period where it was unenforceable
What is the consequence where an self declaration express trust of land has never been formalised?
beneficiary has no interest
What is the consequence where a transfer on trust express trust of land has never been constituted?
unenforceable and void
What is the consequence where there has been a legal transfer on trust of land that has never been constituted?
Resulting/constructive trust
How is legal title transferred for trusts of registered land?
- made by deed
- registered at land registry
How is legal title transferred for trusts of shares?
- stock transfer form
- sent to company
How is legal title transferred for trusts of choses in action?
- written transfer
- notice sent to debtor/bank
How is legal title transferred for trusts of chattels?
- Deed of gift or
- delivery + evidence of intention to transfer
How is legal title transferred for trusts of cheques and other bills of exchange?
Signing name on back
What is the effect of constitution?
The disposition is irrevocable
What was the equitable maxim relevant in Milroy v Lord?
Equity will not assist a volunteer/perfect an imperfect gift
What are the exceptions to the rule in Milroy v Lord?
- Re Rose
- Fortuitous vesting
- Donationes mortis causa
What was the exception to Milroy v Lord in the Re Rose case that allowed the transfer to be effective?
Transferor had done ‘everything in his power’
How did Mascall v Mascall extend the principle in Re Rose?
Transfer will be irrevocable when the transferor puts the matter beyond their control
Why was a trust declared in Pennington v Waine even though the transferor had not done everything in their power to formalise?
It was unconscionable
What is the effect of Re Rose applying?
Constructive trust
What is fortuitous vesting?
Intended recipient’s title may be rectified if they obtained legal title through another route
In what circumstances does fortuitous vesting usually occur?
where intended recipient is also personal representative of the donor’s estate
Will fortuitous vesting apply where there are several executors?
Yes
What are the conditions for fortuitous vesting?
- Intention to make immediate gift
- Intention continues until death
- Intended done becomes an executor
What are the conditions for a donationes mortis causa?
- made in contemplation of death from an identifiable cause which donor believes imminent
- conditional on death
- delivery
How can delivery for a donationes mortis causa occur without delivering the actual property in question?
Giving something that represents the title
