Mandatory Q 1

Question 1

What is an unconstituted inter vivos trust?

Answer 1

The trust property has not been vested in the trustee, for the benefit of __________.

Question 2

What is the problem with an unconstituted inter vivos trust?

Answer 2

Equity will not enforce it, as equity will not assist a volunteer

Question 3

How can a trust be properly constituted?

Answer 3

1. Where the relevant property has been transferred
2. Where the settlor has declared a trust over the property (can be done orally except for land)

Question 4

What happened in Milroy v Lord?

Answer 4

The settlor did not carry out all the necessary formalities to transfer shares, so the trust was not fully constituted.

Question 5

Where would an exception arise?

Answer 5

Where the settlor does everything possible to complete a transfer, but some other person fails to complete the instructions.

Question 6

What happened in Re Rose?

Answer 6

• The settlor had initiated a formal transfer of shares to the trustees but died before the change of names was registered.
• It was found that the settlor had done everything possible to carry out the transfer.

Question 7

How does a settlor make a declaration of trust?

Answer 7

WHere the settlor makes herself trustee of the property for the beneficiaries.

Question 8

Can property be declared as a trust orally?

Answer 8

Yes, apart from land which must be evidence in writing

Question 9

What was rejected in Richards v Delbridge?

Answer 9

The idea of an ineffective transfer converting to a declaration was rejected.

Question 10

What happened in Pennington v Waine?

Answer 10

The court are not prevented from construing a case in such a situation where that interpretation is permissible as a matter of construction

Question 11

What happened In T Choithram SA v Pagarini?

Answer 11

• Apartially complete transfer was found to be a trust as the settlor has stated orally that all of his wealth was to go to the trust.
• The Privy Council noted that the declaration has fixed on the settlor’s conscience.
• This was even the case where the settlor was on of multiple trustees

Question 12

What is certainty of intention/words?

Answer 12

This effectively means that there should be an imperative nature to the words used

Question 13

What was set out in Re Byrne’s Estate?

Answer 13

Monroe J stated that no trust will be established unless the words of qualification are clear and definite, and so expressed to be regarded as imperative

Question 14

What does Virgo say about certainty of subject matter?

Answer 14

Certainty of subject matter requires certainty of the identity of the property that is to be held on trust, and of the proportionate amount of each beneficiary’s share.

Question 15

What happened in Palmer v Simmonds?

Answer 15

• Testatrix left her residuary estate to the beneficiary with the hope that he would leave the ‘bulk’ of her residuary estate if he should die without issue.
• The court were of the opinion that a phrase like this was not sufficient to create a trust

Question 16

In the event of an unpaid loan, would _____ be a debtor of the estate?

Answer 16

Yes

Question 17

Although equity does not assist a volunteer, it is said not to be keen to defeat a gift. True/false?

Answer 17

True

Question 18

What happened in Strong v Bird?

Answer 18

• Here, testator indicated that they did not expect repayment of a debt.
• The intention was deemed to continue into death, so the debtor who was also the executor of the estate did not have to pay the money back

Question 19

What is the rationale behind the rule in Strong v Bird?

Answer 19

The rationale behind this decision is essentially that if the incomplete gift is made by the donor, and the legal title is later vested in the done (an executor of the estate has temporary ownership of the testator’s property in order to administer it), and the intention to make the gift has continued until the donor has died, then the gift will become complete.

Question 20

What happened in Re Stewart?

Answer 20

A similar outcome was seen in Re Stewart, where the testator’s wife was given an incomplete gift and later was an executor of the estate.

Question 21

What is the rule in Re Innes about?

Answer 21

Specific property