Implied Trusts Flashcards
2 kinds of secret trusts
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
Requirements for fully secret trusts
Inform T before death
Intention, communication of intention and terms, acceptance before death
Accept expressly or silently
What if a fully secret trust fails
T holds it absolutely
Requirements for half secret trust
Intention , communicate intention and terms, acceptance before execution
What is half secret trust fails
T holds it on trust for residury B or intestacy
Bare trust
T holds property for benefit of single adult absolutely
Proprietary estoppel
Representation of beneficial interest Reliance Detriment Causal link between reliance and detriment Remedy is min to do justice
Type A Resulting trust
- 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
- Transfer without value
Presumption of advancement
If man transfers property to wife, son or daughter assume it was a gift
Type B resulting trust
Transfer to T but not B so S must be B. Then T holds on RT for S.
What is a constructive trust
Court declares this has arisen when it would be unconscionable for other party to retain property
Ways Constructive trusts arise
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
Joint name cases. Family homes
Stack v Dowden
Presume 50:50
Hard to rebut this
Look at all circumstances incl work and housework, child care etc
Family homes: single name cases
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
Will the court uphold an advanced agreement about shares in the family home
Yes
Do RT and CT need any formalities
No
What is presumption of advancement
Assume it is a gift so not RT
Examples of when presumption of advancement applies
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)
What is personalty
Any property other than land
Ways RT can arise
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)
How are shares apportioned in RT
Proportionate to their contributions
Joint names - trusts of family home
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
What type of implied trust is created in family homes cases
Common intention CT
Family homes - sole names
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
How are shares allocated in sole name family home CTs
If the parties agree they uphold their agreement. Otherwise what is fair in regard of all dealings
Elements of proprietary estoppel
Assurance
Detriment
Reliance
Satisfy the equity
What is satisfy the equity
Decide what should be given to C
What is an assurance for proprietary estoppel
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)
What is detriment for proprietary estoppel
Must be substantial but need not be money. Balance it against any benefit so it must be a detriment on balance
Remed for proprietary estoppel
Discretionary
May be barred from remedy if conduct of C was inequitable, or unreasonable delay in claiming
Try to achieve fair and proportionate outcome
Does the assurance relied on in proprietary estoppel need to be the sole reason for Cs conduct
No need for it to be sole reason but should not have acted for reasons other than assurance
