Property Law - Mutual Wills and Secret Trusts Flashcards
AG for Hong Kong v Reid general
Bribe to act contrary to C’s interests
How does Re Cleaver explain MW?
Inconsistent dealings with property forces equity to intervene
What does intention as a requirement for ST require regard to?
Three certainties
Why can’t the fraud theory explain HST?
B never keeps the property - it is always either an RT, C or successful HST
Moss v Cooper on method of acceptance
Words or silence
What judge in what case distinguished between subsequent and prior promises on JT property in FSTs?
LJ Fairwell in Re Stead
What power does B have under a MW?
Bare power
What judge in what case refused to enforce MW without compliance with LP(MP)A 1989 s.2?
David Donaldson QC in Healey v Brown
Healey v Brown general
No compliance with LP(MP)A 1989 s.2
LP(MP)A 1989 s.2
Requires signed writing for a contract of land
What case required ‘Irrevocability of the mutual intentions’ for firm agreement of MW?
Re Goodchild
What case gives the effect of non-compliance with HST requirements?
Re Keen
What is the ‘fraud’ theory of ST?
Statute is not an instrument of fraud
Why does Hackney not think HST should exist at all?
Unconscionability is dealt with through RT
Re Boyes gives what two categories for non-compliance with FSTs?
If B is ignorant of the trust or ignorant of the terms
What case suggested that if a MW fails, an ST may operate instead?
Healey v Brown
Two cases showing possible subject matter of a MW?
Re Hagger; Re Dale
Re Maddock
FST fails if secret T dies
Outline to 4, detail to 5th
Blackwell v Blackwell
Olins v Walters general
Saunders
Stephenson v Barclays Bank
B AND C can exercise Saunders
What is the doctrine of incorporation?
Will can refer to already existing written instrument, and it will be incorporated
Why does communication of a fully secret trust need to be before death of A?
Property moves automatically to B upon A’s death so needs to have agreed prior to receipt
How can Re Gardner (No.2) be criticised?
C’s right only arises when trust is constituted by B’s receipt, which doesn’t happen until A dies
Life interest and remainder man
Re Hagger
What judge in Re Gardner (No.2) suggested that in a HST, if secret B dies property would go to C’s estate?
Romer J
Walgrave v Tebbs on method of acceptance
Express or implied
3 requirements for STs in Kasperbauer v Griffith
Intention, communication and acceptance
If B revokes his MW, will takes effect but D holds on trust for C
Re Heys
If the subject matter of a MW is unclear, what can the parties do?
Apply to court
Irish case on HST communication
Re Browne
Re Dale on subject matter of trust specifically
MW can apply to ANY property promised to pass on, and no need to receive property at all
Blackwell v Blackwell general
Outline to 4, detail to 5th
Polly Peck v Nadir general
interim injunction
Moss v Cooper general
Agents
No compliance with LP(MP)A 1989 s.2
Healey v Brown
Walgrave v Tebbs general
Instructions after death
Re Newey general
Mirroring
What case gives communication requirements of fully secret trusts?
Walgrave v Tebbs
Rickett on nature of MW trust
Remedial CT
Three possible ways to justify secret wills
Fraud, dehors the will and CT
What is the constitutional question about STs?
Is it valid to read in an exception to a statutory instrument?
What case gives the assumption that an individual does not relinquish the freedom to make testamentary dispositions?
Charles v Fraser
Liew on nature of MW
Qualified and absolute interest analysis, focusing either on advantage-based aim or loss-based aim
Obligation of MW when A dies
Thomas and Agnes v Carvel
Mirroring of wills unnecessary for MW
Re Newey
Birmingham v Renfrew judgment
CT when A dies, but only crystallises when B dies OR when B makes an improper disposition
Why is it suggested LP(MP)A 1989 s.2 would apply to MW?
MW is considered a ‘contract’
What case suggested that if there is sufficient notice of MW revocation before A’s death, doctrine may not even apply?
Lewis v Cotton
What academic suggested the outcome if B makes an improper disposition?
Liew
What did Mummery LJ in Re Walters say the MW doctrine was about?
Response to prospect of unconscionable conduct
FST fails if secret T dies
Re Maddock
What judge in what case said that mutual wills continue ‘to be a source of contention for the families of those who have invoked’ the doctrine?
Mummery LJ in Olins v Walters
What is the dehors the will theory?
Sts are outside the will so s.9 WA has no application
What is the basic starting point for a valid testamentary disposition?
S.9 Wills Act 1837
Why is a high degree of certainty required for MW?
B binding himself DESPITE possibility of change in circumstances
Refraining from making a will
Strickland v Aldridge
Why does the Re Stead rule exist?
To block C from profiting from B’s fraud
Two cases on revocation of MW agreement
Re Heys; Lewis v Cotton
Why does the CT theory of Sts completely circumvent WA?
Not testamentary dispositions at all
Re Newey judgment
Mirroring of wills unnecessary for MW
Why is it an issue for ST justification that you can’t declare an immediate trust of future property?
ST can bind after-acquired property
To C and D equally
Re Dale
‘Takes absolutely’
Re Rees
Re Keen general
Sealed envelope
What is the general rule if communication of an FST isn’t communicated to all?
Only person who is told is bound
Lewis v Cotton
If revocation attempted before A’s death, maybe BoC, but if sufficient notice then MW may not even apply
Name at least two reasons why agreements might be made outside the will?
Wills are public documents, A unsure what he is going to do with the property or A unaware of s.9 Wills Act 1837
What case shows agents can be used to communicate a fully secret trust?
Moss v Cooper
What is the CT theory of ST?
Prevents particular form of unconscionable conduct in B acquiring property meant for another
Walgrave v Tebbs judgment
Communication needs to be before, during or after execution of will but BEFORE testator dies
In the Goods of Smart general
Probate doctrine of incorporation
Two cases on terms of HST conflicting with will
Re Rees and Re Keen
What review started in later 2015 with the suggestion of abolishing MW doctrine
Law Commission 2015
Re Stead general
JT
Re Rees general
‘Takes absolutely’
What are both secret trusts and mutual wills loosely based on?
Agreement
Walgrave v Tebbs on content of communication for fully secret trust
Intention to create an ST
Polly Peck v Nadir judgment
For CT, C can virtually get an interim injunction as of right before trial
What case showed that the question of permissibility for use of property in B’s lifetime is fact specific?
Re Walters
Name at least two reasons why CTs are difficult
Used as a miscellaneous category, disputes over categorisation and lack of a coherent theme
Re Colin Cooper general
£5000 then £5000
What case rejected Hackney’s view on HSTs as being dealt with through unconscionability?
Blackwell v Blackwell
Moss v Cooper on reliance
Will unrevoked after B’s promise justified CT
Blackwell v Blackwell on communication of HST
Needs to be before or at time of execution of the will
Blackwell v Blackwell on death of secret T
suggested a court would interfere to prevent an FST failing if a secret T dies
£5000 then £5000
Re Colin Cooper
Strickland v Aldridge judgment
Refraining from making a will can show A’s reliance of B’s acceptance
What is there no case on when considering death of secret beneficiary?
FST
What case required ‘Clear and satisfactory evidence of a contract’ for MW?
Re Walters
What case suggested a court would interfere to prevent an FST failing if a secret T dies?
Blackwell v Blackwell
Re Browne general
Irish case on HST communication
Re Walters general
‘Clear and satisfactory evidence of a contract’
Olins v Walters judgment
C cannot exercise Saunders rights but can ask for a declaration that the agreement amounts to a MW
Re Gardon on HST communication
If only made to 1 T before execution, all are bound
‘Irrevocability of the mutual intentions’
Re Goodchild
What happens, according to Re Stead, if property left on JT but communication made after will made/left unrevoked?
Bs share is severed in JT
What case showed C under MW cannot exercise Saunders rights?
Olins v Walters
Re Goodchild general’
‘Irrevocability of the mutual intentions’
What category of ST can the fraud theory not explain?
HST
What case shows the BENEFICIAL consequences of a CT?
AG for Hong Kong v Reid
What suggests courts are not looking for a valid common law contract in MW?
Majority of cases do not comply with LP(MP)A 1989 s.2 but are enforced anyway
What case suggested a HST ‘will not fail for want of a trustee’
Sonley v Clock Makers’ Company
What case showed B AND C can exercise Saunders?
Stephenson v Barclays Bank
What happens if B is ignorant of the FST?
B takes property absolutely
In what case did Lieu suggest there would be no need for a proprietary or personal compensatory claim after improper disposition by B under MW?
If all B’s property constituted the trust fund
Re Boyes judgment
Instructions only found after A’s death so no ST, but RT
What case gives the effect of non-compliance with FST requirements?
Re Boyes
Why did Liew reject Healey v Brown on application of ST if MW fails?
B’s promise relates to a fund so can’t point to segregated property held for C
Ottaway v Norman
B agreed to make a will for C so forced to do so
‘Notified… during my lifetime’ but only after so no HST
Re Keen
What is the exception to the general rule on communication to only some Ts of FST?
Re Stead
Charles v Fraser general
Assumption
Sealed envelope
Re Keen
Re Keen on effect of non-compliance with HST
Property goes on RT
Birmingham v Renfrew justifying MW/nature of MW
Prevents unconscionable conduct through CT
Two cases on timing of MW
Thomas and Agnes v Carvel; Birmingham v Renfrew
Intending to defeat
Vatcher v Paull
What case shows that communication of a HST cannot be after the execution of the will?
Blackwell v Blackwell
What is the agreement of a MW considered equal to?
Contract at law
Will unrevoked after B’s promise justified CT
Moss v Cooper
Agents
Moss v Cooper
Kasperbauer v Griffith general
‘Knows what she has to do’
What two cases show two possible ways A may show reliance on B’s acceptance of FST?
Strickland v Aldridge; Moss v Cooper
Why does property go on RT if HST fails?
Obvious B not intended to be beneficially entitled
Strickland v Aldridge general
Refraining from making a will
S.9 Wills Act 1837
Signed writing, witnessing by 2 individuals and all terms of the trust stated
What is a criticism of the justification that HSTs are dependent on the doctrine of incorporation?
Terms of HST need not be in writing and doctrine doesn’t require B to be aware of the document
Birmingham v Renfrew
Floating CT
Bribe to act contrary to C’s interests
AG for Hong Kong v Reid
Vatcher v Paull judgment
Intending to defeat what donor of power intended = fraud for MW
Re Rees judgment
If A writes ‘take absolutely’ with other arrangement extra-testamentary, this does not conflict
Instructions after death
Walgrave v Tebbs
Re Hagger
Life interest and remainder man possible subject matters of MW
What happens if B is ignorant of the FST terms?
Failing trust RT
What is the usual effect of an FST?
B holds on CT for C upon A’s death
What are at least two justifications of the position of Blackwell v Blackwell on HSTs?
HSTs dependent on doctrine of incorporation, HST cannot contradict will wording and don’t want A to have the power to make unwitnessed future dispositions
Re Keen judgment
As long as B knew about the trust and had the means of knowing the precise terms, this is enough
Re Dale general
To C and D equally
What case gives the general requirements for all secret trusts?
Kasperbauer v Griffith
Vatcher v Paull general
Intending to defeat
Mummery LJ in Olins v Walters
mutual wills continue ‘to be a source of contention for the families of those who have invoked’ the doctrine
What case shows that the probate doctrine of incorporation can help with evidential requirements of s.9 Wills Act 1837?
In the Goods of Smart
For CT, C can virtually get an interim injunction as of right before trial
Polly Peck v Nadir
Intending to defeat what donor of power intended = fraud for MW
Vatcher v Paull
What is it assumed would happen if a secret B under FST were to die?
RT would operate
From what jurisdiction was Birmingham v Renfrew?
Australia
Kasperbauer v Griffith judgment
3 requirements for all STs
Re Colin Cooper judgment
Only first amount communicated is trust property under CT
What section of Wills Act 1837 shows that s.9 refers to ‘any testamentary disposition’?
S.1
AG for Hong Kong v Reid judgment
Personal obligation to pay money AND same proprietary rights through CT as under ET
Why is the judgment of Birmingham v Renfrew good law?
Followed in many English cases
Re Goodchild on nature of MW
Sui generis closely related to contractual action
Re Keen on HST conflict with will terms
‘Notified… during my lifetime’ but only after so no HST
Re Boyes general
Solicitor
What case shows that the effect of an FST is just to force B to fulfil his promise to A?
Ottaway v Norman
Re Stead judgment
LJ Farewell said that if will of JT property is made/left unrevoked after communication to B, all Ts are bound
Re Walter’s on B’s duties/rights under a MW
question of permissibility for use of property in B’s lifetime is fact specific
What case showed that if HST communication made to one T before execution, all are bound?
Re Gardon
Why does Critchley reject the dehors the will theory?
WA covers ALL testamentary dispositions
What judge in what case enforced that MW is not enforcement of a contract?
Mummery LJ in Re Walters
Sonley v Clock Makers’ Company
HST ‘will not fail for want of a trustee’
David Donaldson QC in Healey v Brown
refused to enforce MW without compliance with LP(MP)A 1989 s.2
Irish case showing rejection of requiring HST to be communicated before will execution?
Re Browne
Gardner justifying MW
Enforcing detrimentally relied on agreements (PE)
Floating CT
Birmingham v Renfrew
Requires signed writing for a contract of land
LP(MP)A 1989 s.2
What academic argues Sts are inter vivos?
Maudsley
what does a bare power mean
B can exercise property for their own enjoyment as long as they don’t intend to defeat the MW agreement
What academic thought HST should exist at all?
Hackney
What case shows that terms of HST can conflict with will?
Re Rees
How can Birmingham v Renfrew be criticised?
No such thing as a floating CT and lack of certainty of subject matter
Probate doctrine of incorporation
In the Goods of Smart
What judge in Re Stead was critical of the JT promise distinction for FSTs?
LJ Fairwell
Why was there an RT in Re Boyes?
Instructions after death so no ST, and failing trust as solicitor doesn’t take gifts by definition
What case showed there is no need to receive property at all for MW doctrine?
Re Dale
What did A intend in Kasperbauer v Griffith?
That his widow leave all property to his 3 children when she died
Why is Maudsley’s explanation of STs hard to accept?
can’t declare an immediate trust of future property and wounded to comply with s.53(1)(b) LPA because would be express
What makes D personally liable to account under a CT, according to Independent Trustee Services v GP Noble Trustees?
Conscience affected with knowledge of CT circumstances
What happens if a secret trustee dies?
There should be no trust, if ST only constituted upon receipt of the property (maybe not the case though)
What case suggests that C’s interest arises as soon as B accepts the ST obligation?
Re Gardner (No.2)
What is required between A and B before a CT is imposed, in general?
Agreement
With what case can the fraud theory of ST be linked with?
Rochefoucauld v Boustead
Re Heys on revocatin
If B revokes his will, will takes effect but D holds on trust for C
Conscience affected with knowledge of CT circumstances to be personally liable
Independent Trustee Services v GP Noble Trustees
Criticism of the justification that courts don’t want A to reserve a power to make unwitnessed future dispositions?
FSTs do exactly that
Thomas and Agnes v Carvel
Obligation of MW when A dies
Who said to write off MW doctrine as ‘sui generis’ is an act of despair?
Liew
What was lacking of the three requirements in Kasperbauer v Griffith?
Communication
Re Gardner (No.2)
Suggests that in a HST, if secret B dies property would go to C’s estate
Re Dale on MW justification
‘To prevent A from being defrauded’
Criticism of the justification that HSTs cannot contradict will wording?
FSTs do
