Pre-seen question Flashcards
What is an inter vivos express trust
a private express trust created in the settlors lifetime where there is a split of ownership. The split is made when the settlor, who creates and establishes a trust, transfers the property on ‘trust’ to the trustee who then obtains the legal title and legal interest for the purpose of disposing the property to the beneficiary who has the equitable interest
What authority defines inter vivos trust and a trustee
Clements & Abass 5th edition on Complete Equity & Trusts
What is a trustee
the bridge between the settlor and the person whom the property is to benefit
Law for age of settlor to be 18
s.1(1) of the Family Law Reform Act 1969
Law for assumed mental capacity
s.1(2) of the Mental Capacity Act 2005
What case sets out the three certainties
Knight v Knight (1840) 3 Beav 148
What author states certainty of intention as being whether the settlor ‘wanted somebody to hold property for the benefit of another’
Graham Virgo
What case sets out the objective test for intention
Ong v Ping [2017] EWCA Civ 2069
What’s the case authority for imperative language for intention
Wright v Atkyns (1823) Turn & R 143)
Case authorities for conduct for intention
Re Kayford [1975] ALL ER 604
and
Paul v Constance [1977] 1 WLR 527
Case authority for precatory words/begging
Lambe v Eames (1870-71) LR 6 Ch App 597
How could Mario show intention
declaring the trust again but this time use commanding words when writing up his trust as long as the property is still in Mario’s possession and not transferred to Luigi yet
‘ i demand’
What author defines certainty of subject matter
Graham Virgo
How should subject matter be described
be described with ‘sufficient clarity’ - graham virgo
What case authority supports subject matter needing to be described with sufficient clarity and is certain
Sprange v Barnard (1789) 2 Bro CC 585
Which case states a percentage needs to be required to identify subject matter from the rest
Palmer v Simmonds (1854) 2 Drew 221
What case authority defines certainty of objects
Sprange v Barnard (1789) 2 Bro CC 58
What case authority states certainty of subject matter needs to be described with clarity and defines certainty of objects
Sprange v Barnard (1789) 2 Bro CC 58
What is the object of a trust for certainty of objects
The object of a trust is the beneficiaries where the ‘trustee and courts must know who they are, what their duties are’
What 3 types of trust can a trust be for objects
Bare, fixed or discretionary
What type of trust for objects is trust 1
Fixed trust
Whats the test for a fixed trust
The trustee, Luigi, would need to compile a complete and exhaustive list of all persons who will benefit from the trust and provide evidence of who they are - by IRC v Broadway Cottages [1955] Ch 20
What case sets out the complete list test for a fixed trust
IRC v Broadway Cottages [1955] Ch 20
What is a fixed trust
As there is a fixed group of beneficiaries who will benefit immediately and absolutely from the trust
How would Luigi show conceptual certainty for a fixed trust (trust 1)
Because the beneficiaries are the trustees children and there would be no issue on Luigi identifying his own children. There would also be no fault in defining ‘your children’ as this was clearly directed at Luigi’s children and therefore satisfies the qualifying criteria - Re Gulbenkian’s Settlement [1970] AC 508
What case sets out the ‘qualifying criteria’ for conceptual certainty
Re Gulbenkian’s Settlement [1970] AC 508
How could evidential be shown in trust 1 by Luigi
By presenting Luigi’s children’s birth certificates which will show that they fall within the fixed group of beneficiaries Mario intended the trust for as well as providing further clarity that they are Luigi’s children by having his name on the birth certificates.
What is the beneficiary principle?
‘someone in whose favour the court can decree performance’ aka there needs to be a living beneficiary who will benefit from the trust - Morice v Bishop of Durhan (1804) 9 Ves 399
What is the case authority for the beneficiary principle?
Morice v Bishop of Durhan (1804) 9 Ves 399
What textbook/author expanded on the beneficiary principle that and ‘some person with rights of a beneficiary or else there will not be a valid trust’
Alistair Hudson 9th edition
What case states the beneficiaries for the beneficiary principle has to be individuals
Re Astor Settlement Trusts [1952] Ch 534
What case states the beneficiaries for the beneficiary principle has to be identified
Re Endacott [1960] Ch 232
What textbook/author states that the formalities are in place to promote clarity in property dealing
Charlie Webb & Tim Akkouh 4th edition
What 2 requirements needs to be satisfied for formalities
1) declaring the trust and
2) properly vesting the legal title of the trust property in the trustee
What case sets out the modes of settlement for the formalities
Milroy v Lord (1862) 4 De GF & J 264
What mode of settlement is the first trust?
Three-way trust - Milroy v Lord (1862) 4 De GF & J 264
What law states that declaring a trust for a three-way trust for land must be evidenced in writing
s.53(1)(b) Law of Property Act 1925 (LPA 1925)
What law states that for the legal title of the trust to be properly vested in the trustee by way of deed
s.52(1) LPA 1925
Where can the essential requirements for a deed be found
s.1(2)(a) and (b) of the Law of Property (Miscellaneous Provisions) Act 1989
What are the requirements for a deed for unregistered land
Deed of conveyance would need to be executed
What are the requirements for a deed for registered land
TR1 form would need to be executed
Who needs to register the transfer of the trust property of land to the trustee
The trustee would need to register the transfer to himself - s.27(1) Land Registration Act 2002
What law states the trustee must register the transfer of trust property to themselves
s.27(1) Land Registration Act 2002
Are gold bars tangiable or intangiable property
Tangiable - they can be touched
What is the rule for tangiable property so that they comply with certainty of subject matter
They need to be segregated from the larger pool in order to comply with certainty of subject matter
What cases state that tangiable property needs to be separated or segregated from the rest
Re Goldcorp Exchange Ltd [1995] 1 AC 74 and
Re London Wine Co (Shippers) [1986] PCC 121
What type of trust is the second trust for certainty of objects
Bare trust
What is a bare trust
As the trust is for a sole beneficiary
What are the requirements for a bare trust
Mario, has to be able to identify the beneficiary, Peaches, so much so that the courts need to be able to identify the beneficiary by the trustee providing Peaches full name, address and the relationship they have with the settlor - Re Gulbenkian’s Settlement [1970] A.C 508
What case states that the trustee needs to identify the beneficiary with evidence
Re Gulbenkian’s Settlement [1970] A.C 508
What mode of settlement is trust 2
Two-way trust - Milroy v Lord (1862) 4 De GF & J 264
What is a 2-way trust
where Mario is settlor and trustee and Peaches is the beneficiary
What type of property is gold bars
Chattels, therefore personalty
What type of property is a holiday home
Land
How can the deceleration of a trust be done when the property is chattels
Either be done orally or in writing - Rowe v Prance [1999] 2 FLR 787
What case states that a trust can declared orally or in writing
Rowe v Prance [1999] 2 FLR 787
Does the property need to be vested into the trustee for a two-way trust
No,as the settlor is already the trustee therefore transferring the title to themselves would be unwise
How has Pauline breached her fiduciary duty in trust 3
With an intentional act of misappropriating Mario’s trust funds into her own bank account
What standard must all trustees meet as fiduciary at common law
Ordinary prudent man of business
Speight v Gaunt (1883) 9 App Case 1 and
Learoyd v Whiteley (1886)33 Ch D 347
What is the statute which states the standard all trustees need to meet as fiduciary is by ‘exercising care and skill as is reasonable in the circumstances’
Trustee Act 2000, s.1
Where does ‘exercising care and skill as is reasonable in the circumstances’ come from
Trustee Act 2000, s.1
What statute holds experts and professionals to a higher standard as trustee/fiduciary when acting in the course of business
Trustee Act 2000, s.1(b)
What case defined fiduciary duty as being someone who acts on behalf of another in circumstances which rise to a relationship of trust and confidence and an obligation of loyalty
Bristol and West Building Society v Mothew [1998] Ch 1
Define fiduciary duty
Someone who acts on behalf of another in circumstances which rise to a relationship of trust and confidence and an obligation of loyalty - Bristol and West Building Society v Mothew [1998] Ch 1
What case states that fiduciary cannot act in conflict or for profit
Bray v Ford [1896] AC 44
What case states that the courts take a strict application for breaches of fiduciary duty
Keech v Sandford (1726)
How do you satisfy causation for a breach of fiduciary duty
Show the trustee misappropriated trust property and turned it into a profit which caused loss - Target Holdings v Redferns [1996] AC 421
What case states that the fiduciary needs to have caused a loss to the beneficiary and where the loss would not have occurred but for trustee action
Target Holdings v Redferns [1996] AC 421
What is a claim in personam
Against the trustee personally
What is a claim in rem
To recover misappropriated trust property
Why would it not be advisable to claim in personam
Pauline has spent both hers and Mario’s original money it would not be advised to proceed for a claim in personam and therefore a claim in rem seems the most sensible to pursue
What does Mario need to show to make a claim in rem
That he has a proprietary interest in the property he is seeking to trace or follow
What case defines tracing
Foskett v McKeown [2001] AC 102
What is tracing
A process by which a claimant has the choice of following their original assets or to take the proceeds of the sale - Foskett v McKeown [2001] AC 102
Why wont Mario be able to trace at common law
Tracing at common law requires the beneficiary to identify with certainty that the money in the bank account is theirs which isn’t feasible in this scenario as Pauline mixed Mario’s and her money
Will Mario need to trace at common law or in equity
In equity which has a criteria which needs to be set out by - Re Diplock [1948] Ch 465
What case sets out the criteria for tracing in equity
Re Diplock [1948] Ch 465
What is the criteria for tracing in equity as set out in Re Diplock [1948] Ch 465
- there needs to be a fiduciary relationship
2. Mario must should he has a beneficial interest in the property he is seeking to trace
What case supports Re Oatway
Re Tilley’s Will Trust [1979] Ch 1176
How does Re Oatway apply in Marios case
Because Pauline, the trustee, withdrew money from mixed funds and bought an asset (shares) and then dissipated what was left in the account on fine dining and alcohol which cannot be traced
What is the rule in Re Oatway
The shares (asset) purchased, even if they were purchased by the trustee originally, would belong to Mario as beneficiary because it would be unequitable for Mario to collect nothing
What did Hudson say in relation to Mario taking the asset (through the rule in Re Oatway)
The courts would benefit the beneficiary anyway they can from the misfeasance of the trustee
What case states that the beneficiary can trace into profits made by the trustee
Boardman v Phipps [1966]
How many years would Mario need to bring a claim
6 years - Limitation Act 1980, s.21(3)
