Formalities + Constitution Flashcards
what are the 2 formalities?
- trust property MUST be vetted in T
- declaration of the Trust MUST take appropriate form
what’s the rule for vesting the asset in T for Wills?
Trust MUST be in valid will, complying with Wills Act 1837 s.9:
- in writing, signed by Testator/someone in their presence at their direction
- Testator intended by their signature to give effect to the will
- Signature is made/acknowledged by Testator in presence of 2+ witnesses present at the same time
- Each witness either:
- Attests + signs the will
- Or acknowledges signature in presence of Testator
what’s the rule for vesting the asset to T for inter vivos transfers?
depends on property type:
- Land –> by deed: LPA 1925, s 52
- Debts/legal choses –> in writing: LPA 1925, s 136
- Company Shares –> execution and delivery of share transfer form, plus name of new legal owner entered on company’s register of members: Companies Act 2006, s 770 et seq
what’s the rule for declaring a Trust for Wills?
MUST comply with Wills Act 1837 Section 9
what’s the rule for declaring a Trust for Inter Vivos Declarations for Land?
can make a Trust over Land Orally, BUT won’t be binding Until there’s Written Signed Evidence of it –> LPA 1925 s.53(1)(b)
what’s the rule for declaring a Trust for Inter Vivos Declarations NOT for Land? + which case?
Paul v Constance [1977]
- no formalities needed, can be oral w/o doc
what’s the rule for declaring a Trust for Constructive OR Resulting Trusts?
No formalities required for Trusts arising by Operation of Law –> LPA 1925 s.53(2)
general rule for trusts + imperfect gifts?
Equity won’t re-interpret Failed Gift as a Declaration of a Trust, because the first thing we look for to be a Valid Trust = Certainty of Intention (see Milroy case)
Milroy v Lord [1862] –>Failed Gift
- Attempt to transfer shares
- Formalities for transfer not complied with
- Mr Medley dies
- Were shares held on Trust for Milroy by Medley, as he still had the title
Held = No, lack of Certainty of Intention (Turner LJ)
Jones v Lock [1865] –> Failed Gift
- Father hands cheque made to him, to baby son + puts in safe
- Doesn’t cash it for baby or endorse it, but gives it as a gift
- Dad dies
Held = son had No claim to money
- Dad did Not follow formalities:
- Did not declare himself Trustee + actions did Not suggest this
Richards v Delbridge [1874]
- Grandad endorses lease to grandson with words “this deed and all thereto I give to Edward”
- Gives to Edward’s mum + dies w/o reference in Will
Held = Grandson has No claim
- Land = Must be done via Deed
- Cannot do this by endorsing pre-existing deed
- (Inter Vivos here, so no Wills Act needed)
Choithram v Pagarani [2001] –> Charitable Trusts + Benevolence
- Failed oral transfer of shares –> “I give to the Foundation”
Held = he was already a T, so Court said he Must have meant “I hold as Trustee of the Foundation”
- General idea = when dealing with Charitable Trusts (social goods) = take Benevolent view when it comes to construction to validate them
Re Rose [1952] –> Rose rule, alter changed
Held = Equitable title passes when transferor has done Everything in their Power to Transfer it
what’s the Rule post-Rose?
Shift from transferor doing “everything in his power”, to “everything that can Only be done by him”
- Transfer now in a state where they can’t stop it anymore
Mascall v Mascall [1984] –> New Rule
- Transfer of land
- Documents completed + stamped, just needed to be sent to Land Registry
- Dad + son fall out
*Held = incomplete land transfer was Valid in Equity as mothing more required for completion
Corin v Patton [1990] –> Australian, Paperwork not handed over, Constructive Trust
- Transfer of land
- Mrs P executing transfer to Brother Mr C for him to hold on Trust for her Interest
- She dies before telling bank to hand over paperwork
Held = Transfer NOT Valid in Equity
- Transferor Not done everything she needed so that it could not be stopped (paperwork not handed over)
Pennington v Waine [2002] –> New Rule, Constructive Trust
- Ada C = majority shareholder in family business
- In 1998, meets with 1 of company’s auditors, says she wants to transfer 400 shares to nephew Harold C
- Executes share transfer form –> 1st stage of formalities
- Gives it to auditor + tells HC about the transfer + told him he’ll come a director
- Told HC there’s nothing more for him to do
- Ada dies
- Auditor (Pennington) tells Harold this will happen
- HC signs paperwork that he’ll take on the liabilities of being a director
- P hands paperwork to a colleague who forgets + it never gets delivered
- *(1 step less than what happened in Rose case)
- *But here, Mr P = Ada C’s agent
**Thus Q here = have you AND your Agent done everything they can do
- *But here, Mr P = Ada C’s agent
Do shares pass in Equity?
Rose suggests No –> everything in your power has Not been done
**BUT CoA Held = Transfer was Effective
- **Title passes in Equity when it comes Unconscionable for it Not to pass
Arden + Scheiman LJJ: Transferred when HC agreed to be company director (Detrimental reliance)
Alternative ratio: by the actions of AC + Mr P, when they said there’s nothing more for him to do, AC + P became HC’s implied agents + HC relied on this to his detriment
what’s the rule for Deathbed gifts?
- an Exception
- when alive, but only effective upon Donor’s death
Cain v Moon [1896] –>3 Requirements for Deathbed gifts
- Gift made in Contemplation of Death
- Delivery of Subject Matter
- Gift Conditional Upon Death = if owner survives, they keep it
Sen v Headley [1991] –> Deathbed
- Donor secretly slips keys to ex-partner during hospital visit
- “The house is yours Margaret. You have the keys. They are in your bag. The deeds are in the steel box.” = Valid gift
Woodward v Woodward [1995] –> Deathbed
“You can keep the keys, I won’t be driving it anymore.” = Valid gift
Re Bogusz [2013] –> Deathbed
- Valid gift, despite no reason to fear death + lived for 4 more months
- Met 3 requirements from Cain v Moon
King v Dubrey [2016] –> Deathbed
- Said Re Bogusz = wrongly decided
- Must have good reason to anticipate death in near future from an identified cause
Keeling v Keeling [2017] –> Deathbed
- Donor advised by solicitor to give effect to this gift via Will
Held = No gift where Donor actively declined to make a will
