Formalities & Constitution of Trusts

Question 1

What are the requirements for a valid trust?

Answer 1

1. the three certainties
2. statutory formalities
3. constitution

Question 2

Formalities for testamentary trusts? (made by a will)

Answer 2

section 9 of the wills act 1837 - made in writing, presence of two witnesses, signed

Question 3

Formalities of inter vivos trust? (during the lifetime of settlor)

Answer 3

no formalities, doesn’t have to be made in writing, trusts of land must comply with s.53 LPA 1925

Question 4

Case for s.53 LPA 1925?

Answer 4

Grey v IRC

Question 5

What is the rationale of all the formalities?

Answer 5

1. confirm the existence of the trust
2. transfer the legal ownership from settlor to trustee, was the property actually transferred and when
3. prevent fraud

Question 6

What is the constitution of a trust?

Answer 6

property vested in a trustee - Milroy v Lord

Question 7

What are the 3 processes for constitution of a trust?

Answer 7

1. actually transferring the property
2. transfers the property to a trustee
3. declares that he himself holds it in a trust

Question 8

What is the case of Milroy v Lord?

Answer 8

legal title did not pass, settlor must have done everything necessary to transfer the property, must use the correct method

Question 9

What is the correct method for transferring ownership of a share?

Answer 9

section 1 stock transfer act 1963
- transferor signing a form in favour of transferee

Question 10

What is the correct method for transferring ownership of land?

Answer 10

s. 52 LPA 1925 - deed includes all the terms and is signed in the presence of a witness
s.1 of the law of property act 1989

Question 11

What is the correct method for transferring ownership of jewellery?

Answer 11

chattels, deed or gift, actual delivery with intention

Question 12

What is the correct method for transferring ownership of cash?

Answer 12

chattels, cash transferred by intention to give and delivery

Question 13

What is the correct method for transferring ownership of money in bank account?

Answer 13

s.136 LPA 1925, transferred by writing, notice in writing must be given to the debtor/other party

Question 14

What is the every effort principle?

Answer 14

Re Rose
- had done everything within his power, only outstanding tasks to be carried out by a 3rd party

Question 15

Mascall v Mascall?

Answer 15

not necessary for the transferor to send the documents to the person capable of completing the transfer, however they must put the matter beyond their control, by sending the documents to the intended transferee

Question 16

What is the doctrine of fortuitous vesting?

Answer 16

receiving legal title by other means - Strong v Bird

Question 17

What is donatio mortis causa?

Answer 17

gift made in prospect of the donor’s death