Implied Trusts

Question 1

2 kinds of secret trusts

Answer 1

Fully secret trusts - doesn’t say it’s a trust

Half secret trusts - says it’s a trust but doesn’t say who B is

Question 2

Requirements for fully secret trusts

Answer 2

Inform T before death
Intention, communication of intention and terms, acceptance before death

Accept expressly or silently

Question 3

What if a fully secret trust fails

Answer 3

T holds it absolutely

Question 4

Requirements for half secret trust

Answer 4

Intention , communicate intention and terms, acceptance before execution

Question 5

What is half secret trust fails

Answer 5

T holds it on trust for residury B or intestacy

Question 6

Bare trust

Answer 6

T holds property for benefit of single adult absolutely

Question 7

Proprietary estoppel

Answer 7

Representation of beneficial interest 
Reliance
Detriment 
Causal link between reliance and detriment 
Remedy is min to do justice

Question 8

Type A Resulting trust

Answer 8

1. A financially contributed to purchase of property that is in sole name of B. Assume it wasn’t a gift, B holds on RT for A in quantity proportionate to financial contribution

Can rebut presumption. Presumption of advancement applies. Not family homes

2. Transfer without value

Question 9

Presumption of advancement

Answer 9

If man transfers property to wife, son or daughter assume it was a gift

Question 10

Type B resulting trust

Answer 10

Transfer to T but not B so S must be B. Then T holds on RT for S.

Question 11

What is a constructive trust

Answer 11

Court declares this has arisen when it would be unconscionable for other party to retain property

Question 12

Ways Constructive trusts arise

Answer 12

breach of fiduciary duty / bribe for fiduciary 
Wrong property / wrong person 
Contracts exchanged on sale of land 
Crime/ fraud profits 
Reliance on pre contractual agreement 
Secret trust
Mutual wills 
Knowing recipes or dishonest assistance if they still have property

Question 13

Joint name cases. Family homes

Answer 13

Stack v Dowden

Presume 50:50
Hard to rebut this
Look at all circumstances incl work and housework, child care etc

Question 14

Family homes: single name cases

Answer 14

Establish beneficial interest
Then quantify

Establish beneficial interest through express common intention agreement / understanding AND acted to detriment on reliance on agreement OR financial contribution

Quantify - look at all circumstances family work, child care, work etc

Reliance- not normal couples tasks. Wouldn’t have done it otherwise

Question 15

Will the court uphold an advanced agreement about shares in the family home

Answer 15

Yes

Question 16

Do RT and CT need any formalities

Answer 16

No

Question 17

What is presumption of advancement

Answer 17

Assume it is a gift so not RT

Question 18

Examples of when presumption of advancement applies

Answer 18

Father to child (where child is minor or adult)
A person in loco parentis (this ends when child turns 18)
Husband to wife (and fiancé male to female as long as they subsequently marry)

Question 19

What is personalty

Answer 19

Any property other than land

Question 20

Ways RT can arise

Answer 20

A transfers personalty they already own to B for free (rebut with intention before or at time of transfer- not after)
Something goes wrong
Not all fund is exhausted
A pays for property in Bs sole name (rebut with intention before or at time of transfer. Not after. Contribution after purchase or to other associated costs dont count)

Question 21

How are shares apportioned in RT

Answer 21

Proportionate to their contributions

Question 22

Joint names - trusts of family home

Answer 22

Assume 50/50
Rare to prove otherwise
Person who wants more has burden
Unequal contribution to purchase price not enough
Show separate finances throughout relationship, clear agreement or what is fair in all the circumstances

Question 23

What type of implied trust is created in family homes cases

Answer 23

Common intention CT

Question 24

Family homes - sole names

Answer 24

No presumption of joint beneficial ownership
Person who wants an interest has burden of showing
Common intention (express by convo or implied by contribution to purchase or mortgage) and that they had acted to their detriment in reliance on the common intention

Question 25

How are shares allocated in sole name family home CTs

Answer 25

If the parties agree they uphold their agreement. Otherwise what is fair in regard of all dealings

Question 26

Elements of proprietary estoppel

Answer 26

Assurance
Detriment
Reliance
Satisfy the equity

Question 27

What is satisfy the equity

Answer 27

Decide what should be given to C

Question 28

What is an assurance for proprietary estoppel

Answer 28

Can be active (tell them) or passive (their conduct suggests they think they have an interest and legal owner knows or must have known this but doesn’t correct them)

Question 29

What is detriment for proprietary estoppel

Answer 29

Must be substantial but need not be money. Balance it against any benefit so it must be a detriment on balance

Question 30

Remed for proprietary estoppel

Answer 30

Discretionary
May be barred from remedy if conduct of C was inequitable, or unreasonable delay in claiming
Try to achieve fair and proportionate outcome

Question 31

Does the assurance relied on in proprietary estoppel need to be the sole reason for Cs conduct

Answer 31

No need for it to be sole reason but should not have acted for reasons other than assurance