Formalities for Declaring a Trust

Question 1

ON DEATH
What does S.9 Wills Act state in relation to formalities for leaving a trust in a will?

Answer 1

The signing of the will must be witnessed and signed by 2 witnesses.

Question 1

INTER VIVOS - PERSONALTY
What was the principle which was laid out in Paul v Constance 1977?

Answer 1

There’s a declaration of trust if the property was held for them

Question 2

INTER VIVOS- PERSONALTY
What was the principle which was laid out in Re Kayford [1975]

Answer 2

There are no written formalities required - Maxim of equity looks to substance not form.

Question 3

INTER VIVOS - LAND
Which provision states that there must be ‘some writing signed’ for effective declaration of trust?

Answer 3

S.53 (1) (b) LPA 1925.

Question 4

INTER VIVOS - LAND
What does S.53(2) LPA 1925 state?

Answer 4

S.53 (1) (b) does not apply to implied trusts.

Question 5

What is the effect of a valid declaration of trust?

Answer 5

Cannot get the property back - it is a completely constituted trust. Re Bowden [1936]

Question 6

What was the principle outlined in Milroy v Lord (1862)

Answer 6

There are 3 ways of transferring property:
1. An outright gift - leg title only
2. A settlor declares self as T - equitable title only
3. Transfer of property to someone to hold on trust - Legal and equitable titel.

Question 7

What case declared that an absolute gift cannot be an effective declaration of trust?

Answer 7

Jones v Lock (1865)

Question 8

What was the principle laid out in T.Choithram International SA v Pagarani [2001]?

Answer 8

Equity will not assist a volunteer, but it also will not strive officiously to defeat a gift.

Question 9

What are the 2 exceptions to equity will not assist a volunteer?

Answer 9

1. Every effort test as per Re Rose.
2. Unconscionability as per Pennington v Waine

Question 10

What was the principle laid out in Re Rose [1952]?

Answer 10

If a settlor has made ‘every effort’ to transfer property, then the transfer will be complete in equity.

Question 11

What was the principle laid out in Pennington v Waine [2002]?

Answer 11

Ownership can pass in equity when it becomes ‘unconscionable’ for it not to be passed on.

Question 12

What was the principle laid out in Curtis v Pulbrook [2011]?

Answer 12

A recipient of a trust must have done something to their detriment, relying on the trust.

Question 13

What was the principle laid out in Khan v Mahmood [2021]?

Answer 13

Detriment is NOT required - if the transferor believed that the property has been transferred then it will be regarded as transferred.