Formalities and Constitution of Trusts

Question 1

Chopra v Brindra

Answer 1

Documents intended to operate on death with the power of revocation are generally testamentary

Question 2

Baird v Baird

Answer 2

If S never owned the property, then it’s not a testamentary disposition because testator never owned property during her life time

Question 3

Milroy v Lord

Answer 3

If S intends to create a trust by means of transfer to trustees, but fails to make that transfer, those facts alone do not permit the intended beneficiary to claim an express trust has arisen

S never wanted to be the trustee – S has no intention to hold property on trust for beneficiary, as she intended to transfer the property to trustees to hold on trust

Question 4

T Choithram International SA v Pagarani

Answer 4

If S is one of the designated trustees, then that is an exception to Milroy
- it was not intended to be a transfer to other Ts

• it’s a self declaration

Question 5

Why Pararani is different to Milroey?

Answer 5

Lord Brown Wilkinson

1. Not clear S intended to establish the trust by way of transfers (foundations are not a legal personality)
2. S was a trustee, so it can be construed that S intended a self-declaration of trust, and the language of the gift is actually S intended to hold property on terms of trust set out in the deed

Question 6

Re Rose

Answer 6

EXCEPTION TO MILROY

• If S did everything that is necessary to be done by him in order to transfer property
• Then it is possible to say trust is made pending whatever needs to be done by 3rd party

Question 7

Mascall v Mascall

Answer 7

CA applied Re Rose

• doesn’t matter that dad fell out with son and didn’t want to do it anymore and wanted to revoke it
• he already did everything he needed to do
• in equity, the transfer is complete

Question 8

Pennington v Waine

Answer 8

• seems like not all is done
• agent acting for S hadn’t done everything
• could also argue not an agent, and separate person
• also detriment?

Question 9

Strong v Bird

Answer 9

The “gift” in Strong v Bird was considered complete as a result of C’s having appointed D as executor with the intention of forgiving the debt

Question 10

Re Stewart

Answer 10

extended Strong v Bird

• not a debt situation
• a gift!!
• Now may allow an imperfect immediate gift or specific existing property to be perfected if the intended donee is appointed the testator’s executor or administrator alone or with others, so long as the intention to make the gift continues unchanged until testator’s death

Question 11

Re James

Answer 11

administrator is okay too (even though court appointed)

Question 12

Re Gonin

Answer 12

Walton J doubted Re James (obiter)

• Because the principle is extended too far because legal title vested in her
• Even though she wasn’t CHOSEN to be the administrator

Question 13

Strong v Bird exception is essentially:

Answer 13

1. S did not complete the planned transfer during her life
2. S appointed the planned trustee as an executor of her estate or planned trustee was appointed an administrator of that estate
3. The S’s intention to make the transfer on trust continued until her death so that she had at the time “a present intention of giving”