Formalities and constitution

Question 1

Which property will require specific formalities for a declaration of trust?

Answer 1

Land

Question 2

When will constitution not be considered?

Answer 2

Self declaration of trust

Question 3

What are the formalities for an express trust of land as set out in s53(1)(b) LPA 1925?

Answer 3

• manifested and proved
• by some writing
• signed by some person who is able to declare such trust
• Or by will

Question 4

Does the declaration of trust and the writing for a trust of land have to be contemporaneous?

Answer 4

No

Question 5

What are the consequences of not complying with the s53(1)(b) requirements for a trust of land?

Answer 5

Trust is unenforceable

Question 6

If a trust becomes enforceable, what is the consequence for the beneficiaries?

Answer 6

They can enforce their rights for the period where it was unenforceable

Question 7

What is the consequence where an self declaration express trust of land has never been formalised?

Answer 7

beneficiary has no interest

Question 8

What is the consequence where a transfer on trust express trust of land has never been constituted?

Answer 8

unenforceable and void

Question 9

What is the consequence where there has been a legal transfer on trust of land that has never been constituted?

Answer 9

Resulting/constructive trust

Question 10

How is legal title transferred for trusts of registered land?

Answer 10

• made by deed
• registered at land registry

Question 11

How is legal title transferred for trusts of shares?

Answer 11

• stock transfer form
• sent to company

Question 12

How is legal title transferred for trusts of choses in action?

Answer 12

• written transfer
• notice sent to debtor/bank

Question 13

How is legal title transferred for trusts of chattels?

Answer 13

• Deed of gift or
• delivery + evidence of intention to transfer

Question 14

How is legal title transferred for trusts of cheques and other bills of exchange?

Answer 14

Signing name on back

Question 15

What is the effect of constitution?

Answer 15

The disposition is irrevocable

Question 16

What was the equitable maxim relevant in Milroy v Lord?

Answer 16

Equity will not assist a volunteer/perfect an imperfect gift

Question 17

What are the exceptions to the rule in Milroy v Lord?

Answer 17

• Re Rose
• Fortuitous vesting
• Donationes mortis causa

Question 18

What was the exception to Milroy v Lord in the Re Rose case that allowed the transfer to be effective?

Answer 18

Transferor had done ‘everything in his power’

Question 19

How did Mascall v Mascall extend the principle in Re Rose?

Answer 19

Transfer will be irrevocable when the transferor puts the matter beyond their control

Question 20

Why was a trust declared in Pennington v Waine even though the transferor had not done everything in their power to formalise?

Answer 20

It was unconscionable

Question 21

What is the effect of Re Rose applying?

Answer 21

Constructive trust

Question 22

What is fortuitous vesting?

Answer 22

Intended recipient’s title may be rectified if they obtained legal title through another route

Question 23

In what circumstances does fortuitous vesting usually occur?

Answer 23

where intended recipient is also personal representative of the donor’s estate

Question 24

Will fortuitous vesting apply where there are several executors?

Answer 24

Yes

Question 25

What are the conditions for fortuitous vesting?

Answer 25

• Intention to make immediate gift
• Intention continues until death
• Intended done becomes an executor

Question 26

What are the conditions for a donationes mortis causa?

Answer 26

• made in contemplation of death from an identifiable cause which donor believes imminent
• conditional on death
• delivery

Question 27

How can delivery for a donationes mortis causa occur without delivering the actual property in question?

Answer 27

Giving something that represents the title