Property Law - Resulting Trusts Flashcards
1
Q
What is the overall heading of resulting and constructive trusts?
A
Trusts arising by operation of law
2
Q
what statute was modernised in the LPA?
A
Statute of Frauds 1677
3
Q
Statute of Frauds 1677 preceded what Act?
A
LPA 1925
4
Q
LPA 1925 s.53(1)(b)
A
Trust of land EVIDENCED in signed writing
5
Q
What happens if a trust of land is not evidenced in signed writing?
A
Trust is valid but unenforceable
6
Q
LPA 1925 s.53(1)(c)
A
Disposition of any subsisting equitable interest need be evidenced in writing
7
Q
LPA 1925 s.53(2)
A
No formalities needed for CT/RT
8
Q
No formalities needed for CT/RT
A
LPA 1925 s.53(2)
9
Q
Disposition of any subsisting equitable interest need be evidenced in writing
A
LPA 1925 s.53(1)(c)
10
Q
Trust of land evidenced by signed writing
A
LPA 1925 s.53(1)(b)
11
Q
What is the outcome of finding an RT/CT?
A
Valuable property protection - right against 3rd, protection from D’s insolvency and asserting equitable interest in new property
12
Q
Westdeutsche v Islington LBC on conscience
A
Lord B-W - conscience need be affected with knowledge of circumstances giving rise to a trust in C’s favour before a trust arises
13
Q
What judge in that case said that conscience of D needs to be affected with knowledge of the circumstances giving rise to a trust before RT/CT?
A
Lord B-W Westdeutsche v Islington LBC
14
Q
Independent Trustee Services v GP Noble Trustees on conscience
A
Lloyd LJ stated CT as soon as D acquired property, but no personal liability until knowledge
15
Q
What judge in what case separated the proprietary and personal aspects of a CT/RT?
A
Lloyd LJ in Independent Trustee Services v GP Noble Trustees
16
Q
Independent Trustee Services v GP Noble Trustees, per Lloyd LJ
A
Separated personal and proprietary aspects of CT/RT
17
Q
Why do H&M believe the conflict between Lloyd J in ITS and Lord B-W in Westdeutsche is overstated?
A
Even under Lord B-W, B has a ‘mere equity’, sharing all the same proprietary attributes of an equitable trust
18
Q
Who argues the conflict between Lloyd J in ITS and Lord B-W in Westdeutsche is overstated?
A
H&M
19
Q
What is the content of B’s trusteeship under an RT?
A
Bare trust - no duty to invest, just hold the property to account
20
Q
From what Latin term does ‘RT’ come?
A
resalire
21
Q
Resalire
A
Jumping back
22
Q
What did Birks distinguish between?
A
Trusts resulting in pattern and resulting in origin
23
Q
What is a trust resulting in pattern?
A
Whenever money returns to the original transferor
24
Q
What is a trust resulting in origin?
A
Looking at the underlying reasoning and rationale of the trust, rather than just the mere fact of money returning to the original transferor
25
Under Birks' distinction between trusts resulting in pattern and origin, which is an RT?
Resulting in origin
26
Two types of RTs
Automatic gifts and failing trusts
27
What is another name for an automatic gift RT
Presumed RT
28
Two subcategories of Automatic gifts
Voluntary transfer and purchase in another's name
29
Give one case on purchase in another's name
Dyer v Dyer; Huntingford v Hobbs; Prest v Petrodel Resources
30
Dyer v Dyer general
No evidence whatsoever
31
Dyer v Dyer judgment
Presumption of RT arises without evidence to the contrary
32
Basic starting point for presumptions in apparent gifts
Dyer v Dyer
33
No evidence whatsoever
Dyer v Dyer
34
Huntingford v Hobbs general
Downpayment and mortgage
35
Downpayment and mortgage
Huntingford v Hobbs
36
Huntingford v Hobbs judgment
Proportion of RT is the proportions at time of purchase
37
Prest v Petrodel Resources general
Ancillary relief, flats
38
Ancillary relief, flats
Prest v Petrodel Resources
39
Prest v Petrodel Resources judgment on purchase in another's name
Irrelevant if all of part of the money is provided by D
40
Why does Mee argue voluntary transfer apparent gift category should be removed?
Absence of evidence to show it wasn't a gift, so it should be a gift
41
Re Vinogradoff general
Grandmother, granddaughter
42
Prest v Petrodel Resources judgment on voluntary transfer
Nothing to rebut equitable presumption that company not intended to acquire beneficial interest
43
Re Vinogradoff judgment
Personalty - nothing to rebut presumption
44
Grandmother, granddaughter
Re Vinogradoff
45
Hodgson v Marks general
Lodger, elderly widow, oral agreement
46
Lodger, elderly widow, oral agreement
Hodgson v Marks
47
Hodgson v Marks judgment
RT as soon as land transferred to lodger, and purchase stepped into lodger's shoes upon purchase
48
What case suggested that oral agreements not protected as express trusts under LPA amount to negative intention for RT?
Hodgson v Marks
49
Lord B-W in Westdeutsche on presumptions
They can be 'easily rebutted'
50
Two exceptions to presumption of apparent gift
Family home context and voluntary conveyance of land
51
LPA 1925 s.60(3)
RT not implied for voluntary conveyances of land because of lack of express intention
52
RT not implied for voluntary conveyances of land because of lack of express intention
LPA 1925 s.60(3)
53
Lohia v Lohia
LPA abolished presumption of RT for voluntary land conveyances
54
What case made it clear that LPA abolished presumption of RT for voluntary land conveyances?
Lohia v Lohia
55
Why can the judgment in Lohia be doubted?
First instance decision
56
Prest v Petrodel Resources doubting Lohia
SC did not consider s.60(3) at all
57
What case doubts the abolition of presumption of gift in the case of voluntary conveyances of land?
Prest v Petrodel Resources
58
What is a positive of LPA s.60(3)?
Formalities increase the likelihood that transferor intended to make the conveyance, so presumption not needed
59
Midland Bank v Cooke general
Less than 7% contribution
60
Less than 7% contribution
Midland Bank v Cooke
61
Midland Bank v Cooke judgment
Inference of common intention meant married coupled intended equal beneficial shares, not presumption of gift
62
Stack v Dowden, per Hale
RTs should be avoided in shared homes
63
Stack v Dowden per Neuberger
RTs shouldn't be completely abandoned in domestic contexts, but same outcome
64
Two relevant judges in Stack v Dowden
Neuberger and Hale
65
What judge in Stack said RTs should be avoided in shared homes?
Hale
66
What judge said RTs shouldn't be completely abandoned in domestic context?
Neuberger
67
Abbott v Abbott per Hale
'Now clear that the CT is generally the more appropriate tool'
68
What judge in what case stated it is 'now clear that the CT is generally the more appropriate tool'?
Hale in Abbott v Abbott
69
Jones v Kernott general
Joint occupation, mortgage
70
Jones v Kernott
Stack prevents RT when home in joint names for joint occupation by a couple
71
What case suggested Stack prevents RT when home in joint names for joint occupation by a couple?
Jones v Kernott
72
What case allowed that the presumption of an RT may still be relevant in other domestic cases?
Jones v Kernott
73
What case gave four conditions for JT in common law and equity?
Jones v Kernott
74
Four conditions for JT in common law and equity?
Joint names, occupation, couple and mortgage under both names
75
Laskar v Laskar general
Mother daughter invesmtnet
76
Laskar v Laskar judgment
Neuberger rejected CT only way in family home, because of investment purpose
77
Why did Neuberger reject CT in Laskar v Laskar?
Investment purpose
78
Gallarotti v Sebastienelli general
Friends, B sole name, larger contributions not made
79
Friends, B sole name, larger contributions not made
Gallarotti v Sebastienelli
80
Gallarotti v Sebastienelli judgment
CT gave 25% share, almost exact same as contributions
81
What two cases show that CT/RT distinction makes little difference to the outcome?
Gallarotti v Sebastienelli; stack v Dowden
82
What does a presumption of RT require?
Absence of evidence and proof of a transfer
83
Mackowik v Kansas City said what of presumptions?
They are 'bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts'
84
What case said presumptions are 'bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts'?
Mackowik v Kansas City
85
Calverly v Green general
1/3 purchase, 2/3 joint mortgage
86
1/3 purchase, 2/3 joint mortgage
Calverly v Green
87
Calverly v Green
RT at time of purchase was 2/3 to M and 1/3 to W, but lien to M for what W had promised to pay
88
What evens out the fact that RTs are determined at the time of purchase?
The fact that A an get a lien for whatever B did not pay
89
What is a presumption of advancement?
Court assumes likely default is a gift to B
90
Who sais presumptions of advancement are not true presumptions?
Mee
91
Who said presumptions of advancement are true presumptions?
Chambers
92
Shephard v Cartwright
Loco parentis
93
Loco parentis
Shephard v Cartwright
94
Tinker v Tinker
Husband/fiancee for presumption of advancement
95
Husband/fiancee for presumption of advancement
Tinker v Tinker
96
Stack v Dowden on presumptions of advancement
Cohabitation insufficient for presumption of advancement
97
Cohabitation insufficient for presumption of advancement
Stack v Dowden
98
Abrahams v Trustee of Property of Abrahams general
Wife insufficient for presumption of advancemnt
99
Wife insufficient for presumption of advancemnt
Abrahams v Trustee of Property of Abrahams
100
Pecore v Pecore general
Mother and children in Canada allow presumption of advancement
101
Mother and children in Canada allow presumption of advancement
Pecore v Pecore
102
What case shows the question of presumption of advancement between mother and children not yet settled?
Garrett v Wilkinson
103
Garrett v Wilkinson general
Mother and child, England, widow
104
Mother and child, England, widow
Garrett v Wilkinson on presumptions of advancement
105
What Act attempted to abolish presumption of advancement?
Equality Act 2010 s.199
106
Why do H&M argue not a big deal that EA2010 not in force yet?
Court can abolish presumption between spouses and gender bias probably contravenes Article 5 7th Protocol ECHR anyway
107
Who highlight presumption of advancement probably contravenes Article 5 7th Protocol ECHR anyway?
H&M
108
What part of the ECHR do H&M suggest presumption of advancement contravenes?
Article 5 7th Protocol - equality of spousal rights
109
CPS v Malik general'
Very slight intention'
110
CPS v Malik judgment
Only need very slight intention to establish intention of advancement anyway
111
what case highlighted how the presumption of advancement is not important as only need very slight intention to establish intention of advancement anyway?
CPS v Malik
112
When are presumptions of RT and advancement most important?
When evidence on which A wants to rely to establish intent refers to an achieved improper purpose
113
Tinsley v Milligan general
Lesbian, social security benefits
114
Lesbian, social security benefits
Tinsley v Milligan
115
Tinsley v Milligan judgment
If you must rely on illegal purpose to establish presumption, illegality defence blocks the claim
116
What case gave the reliance approach to illegality defence?
Tinsley v Milligan
117
What did Lord B-W highlight in Tinsley v Milligan?
Fusion of law and equity mean that, if C tries to enforce a property right under illegal transaction, it is irrelevant if the right is legal or equitable
118
When was the illegal purpose relevant in Tinsley?
When D was trying to rebut the presumption of an RT
119
What did the Law Commission suggest after Tinsley?
More flexible approach needed to illegality defence
120
What was the Law Com's 'more flexible approach' to illegality?
Statutory scheme with discretion
121
Les Laboratoires Servier v Apotex general
Interlocutory injunction, manufacturing illegal
122
Interlocutory injunction, manufacturing illegal
Les Laboratoires Servier v Apotex
123
Les Laboratoires Servier v Apotex per Lord Sumption
Approved Tinsley, rejecting public conscience test from LC
124
Why did Sumption reject public conscience test of LC in Les Laboratoires Servier v Apotex?
Directly inconsistent with Tinsley
125
What is a criticism of the approach in Tinsley?
Illegality has nothing to do with the relationship between C and D
126
Tribe v Tribe general
Shares to child, worried about claims never arose
127
Shares to child, worried about claims never arose
Tribe v Tribe
128
Tribe v Tribe judgment
Only prevented from relying on evidence of illegal purpose if achieved
129
What three conditions were there for relying on non-achieved illegal purpose?
No need for genuine repentance, need to voluntarily refrain from going through with transaction and not enough that C forced to withdraw from discovery
130
What case gave three conditions for relying on non-achieved illegal purpose?
Tribe v Tribe
131
Bilta (UK) v Nazir (No.2) Toulson and Hodge
Toulson and Hodge adopted Tinsley CoA approach on public policy for flexibility
132
Bilta (UK) v Nazir (No.2) Sumption
Approved Tinsley
133
Bilta (UK) v Nazir (No.2) Neuberger
No determination on correct test for illegality defence
134
Why did Neuberger reject construction of the correct illegality defence test in Bilta (UK) v Nazir (No.2)?
Not determinative in the case, and little argument on the topic by council
135
Who approved Tinsley in Bilta (UK) v Nazir (No.2)?
Sumption?
136
Who adopted Tinsley CoA approach on public consciencee in Bilta (UK) v Nazir (No.2)?
Hodge and Toulson
137
Who rejected the construction of correct illegality defence test in Bilta (UK) v Nazir (No.2)?
Neuberger
138
What did Law Com criticise about the presumption of advancement in illegality?
Ability to recover depends on the presence of a sufficiently special relationship
139
What does a failing trust require?
Failed intent to create a trust, absence of intent to benefit T and absence of valid allocation of trust property to anyone else of charitable purpose
140
What is another name for failing trusts?
Automatic RTs
141
Automatic RT
Failing trust
142
Presumed RT
Apparent gift
143
What are the three possible outcomes from a failing trust?
Bona vacantia, to T or to S
144
Why does Swaddling argue no RT needed in failing trust cases?
Personal liability under unjust enrichment is sufficient
145
What do failing trusts creating RTs allow S to do?
Re-declare the trust if that is what she wanted
146
What are the three subcategories of failing trusts?
Express trust fails entirely or partially, trust objective achieved with surplus or dissolution of unincorporated association
147
Name at least two cases when an express trust failed entirely/partially
Vandervell v IRC; Re Shaw; Re Foord; Barclays Bank v Quistclose; Twinsectra v Yardley; Re Flower's Settlement Trusts
148
Vandervell v IRC general
Professorship, shares to RCS, dividends and OTP
149
Professorship, shares to RCS, dividends and OTP
Vandervell v IRC
150
Vandervell v IRC judgment
Trust company cannot own shares for itself, so RT back to S
151
Re Shaw general
Research into 40-letter alphabet
152
Research into 40-letter alphabet
Re Shaw
153
Re Shaw judgment
Private purpose failed, but not for T so RT
154
Re Foord general
Sister absolutely, widow annuity
155
Sister absolutely, widow annuity
Re Foord
156
Barclays Bank v Quistclose general
Dividends to shareholders
157
Dividends to shareholders
Barclays Bank v Quistclose
158
Barclays Bank v Quistclose judgment
RT on failure of purpose trust, primary and secondary framework
159
What case and judge reinterpreted Barclas Bank v Quistclose?
Lord Millett in Twinsectra v Yardley
160
Twinsectra v Yardley general
Money for house
161
Twinsectra v Yardley judgment
Lord Millett reinterpreted Quistclose - immediate RT with power to apply money for purpose
162
Re Flower's Settlement Trusts general
Doctrine of acceleration
163
Re Flower's Settlement Trusts judgment
Doctrine of acceleration blocks RT
164
What case showed Doctrine of acceleration blocks RT?
Re Flower's Settlement Trusts
165
What two cases show failure of a trust is a fact-specific question?
Re Abbott and Re Osoba
166
Re Abbott general
Deaf and mute women
167
Re Abbott judgment
Trust for them only whilst surviving, then RT
168
Re Osoba general
Widow, mother and daughter
169
Widow, mother and daughter
Re Osoba
170
Re Osoba judgment
For benefit of all as JTs, so whole interest disposed of by terms of initial transfer
171
Deaf and mute
Re Abbott
172
Two cases showing trust objectives achieved, with surplus
Davis v Richard & Wellington; Air Jamaica
173
Davis v Richard & Wellington general
Pension scheme, surplus from employer and employee contribution
174
Pension scheme, surplus from employer and employee contribution
Davis v Richard & Wellington
175
Davis v Richard & Wellington judgment
Employer contribution RT but employee bona vacantia
176
Why did employee contributions in Davis v Richard & Wellington go on bona vacant?
Unworkable RT and gave more than legislature intended when imposing statutory limits
177
Why was the RT considered unworkable if allowed RT to employer's contributions in Davis v Richard & Wellington?
Different value of benefits to each employee
178
Air Jamaica general
Privatised company, pension fund, expressly no RT
179
Privatised company, pension fund, expressly no RT
Air Jamaica
180
Air jamaica judgment
RT because operation of law, so trust fund instrument irrelevant
181
What did Millett find unconvincing about Davis v Richard in Air Jamaica?
RT unworkable, because just pro rata distribution
182
What did Millett suggest about justifications for RT in Air Jamaica?
Retention theory wrong, because RT clearly did not respond to A's positive intention
183
Name at least two cases on dissolution of unincorporated associations for failing trusts
Re West Sussex; Re Bucks; Hanchett-Stamford v AG
184
Re West Sussex general
Fund for widows and orphans, raffle
185
Fund for widows and orphans, raffle
Re West Sussex
186
Re West Sussex judgment
Donations and legacies on RT
187
Re Bucks general
Widows and orphans, no rules for winding up
188
Re Bucks judgment
Doubted Re West Sussex, paying proper attention to primacy of members' contracts for beneficial interest
189
What case doubted Re West Sussex?
Re Bucks
190
Widows and orphans, no rules for winding up
Re Bucks
191
Hanchett-Stamford v AG general
Anti-vivisection defence league, wife
192
Hanchett-Stamford v AG judgment
Property vested absolutely in wife as last surviving member
193
What two things did Lewison J reject in Hanchett-Stamford v AG
Charitable purpose of association, and that property went on bona vacantia
194
What case suggested in obiter that if there is only one surviving member of a UA, property goes on bona vacantia?
Re Bucks
195
Supporter of negative intention theory
Chambers
196
Supporter of liberalism and autonomy justification of RTs
Gardener
197
Who called apparent gifts and failing trusts automatic/presumed RTs?
Megarry VC in Vandervell v iRC
198
Megarry VC in Vandervell v iRC
Called apparent gifts presumed RTs and failing trusts automatic RTs
199
Supporter of unjust enrichment justification/alternative for RTs
Chambers
200
Supporter of positive intention theory for apparent gifts
Mee
201
Supporter for apparent gifts RTs responding to A's declaration of trust
Swadling
202
Who said failing trusts 'defy legal analysis'?
Swadling
203
What judge in what case highlighted how the retention theory is incorrect because there is no split of legal and equitable title prior to a trust?
Lord Browne-Wilkinson in Westdeutsche Bank v Islington
204
Why did Megarry VC in Vandervell call FTs automatic?
RT happens upon the trust failing, automatically
205
Why did Megarry VC in Vandervell call AGs presumed?
Equity is cynical that A intended a gift without intention
206
What judge in what case said that all RTs respond to A's common intent, and RT not imposed against B's intention
Lord Browne-Wilkinson in Westdeutsche Bank v Islington
207
Why was Lord Browne-Wilkinson's view on common intention RTs in Westdeutsche Bank v Islington problematic?
He required common intent for the trust, but focus on B's intent when asking if against his intent to impose the trust
208
What case casts doubt on the common intention theory of RTs and why?
Re Vinogradoff - minor can't form an intent
209
What case first recognised UE in England?
Lipkin Gorman v Karpnale
210
Lipkin Gorman v Karpnale
First recognised UE in England
211
In what decade was UE first recognised in England
1990
212
What are the two issues with UE justification of RT?
Not all UE claims result in proprietary remedies, but personal ones, and 'unjust factor' can't be present if basis of the theory is a lack of evidence
213
What factor needs to be present for UE claim?
'Unjust'
214
Why can there be no unjust factor in RT cases?
Lack of evidence bases the RT presumptions, so no 'unjust factor'
215
Who argues AGs shouldn't be RTs at all, as they are simply a state of affairs?
Mee
216
Re Vinogradoff on the positive intention theory by Mee
No intention at all of what Grandmother wanted, so no positive intention to declare for herself
217
What academic essentially aligns RTs with express trusts?
Swadling
218
What are the two problems with Swadling's declaratory analysis of AGs?
RTs arise for lack of proper trust declaration, and thus are NOT express trusts, and s.53(2) LPA explicitly excluded RT and CTs from formalities
219
What, textually, is hard to explain in LPA is RTs arise on presumption of A's intent to declare a trust for himself?
S.53(2) LPA exclusion of RTs and CTs from formalities
220
What is a positive of Chambers' UE analysis of RTs?
Identifies common underlying basis of both AG and FT - A's negative intention
221
In what case was the UE justification rejected?
Westdeutsche v Islington LBC
222
Who said Chambers' UE theory 'proves too much'?
H&M
223
Why did H&M think Chambers' UE theory 'proves too much'?
Causes RTs to arise WHENEVR A transfers property to B with vitiated intention
224
What is the immediate issue with Lord B-W's common intention justification for FTs in Westdeutsche?
RT arises even if A did not intend to get the beneficial interest back
225
What academic highlighted to offer support for common intention analysis of FT, how RT is probably what an 'abstract class' of S's would likely prefer?
Mee
226
Mee, offering support for common intention analysis of FT
RT is probably what an 'abstract class' of S's would likely prefer
227
What academic explains FTs through negative intention?
Mee
228
How does Mee explain FTs through negative intention?
S intends to create a trust, but no intent to benefit B or anyone else
229
Two criticisms of Mee's negative intention justification for FTs
Intention unnecessary if RT arises upon UA dissolution, and S may intend to benefit SOMEONE, but fails on this point/there is surplus
230
What case suggested FTs respond to A's positive intention to retain the beneficial interest?
Re Foord
231
Re Foord general
Sister, wife, annuity
232
Sister, wife, annuity
Re Foord
233
What showed S did not intend to retain the beneficial interest in Re Foord?
'Absolutely' by lay person, informal address and non-income producing property as part of gift
234
Who argued Chambers, in his UE analysis, blurs the distinction between FT and UE?
Mee
235
How does Mee believe Chambers blurs the distinction between FT and UE?
FT is more than UE - absence to benefit B when A intended B to take as T can only mean A did intend to create a trust, just not to benefit B
236
What case casts doubt on Mee's positive intention theory of AGs and how?
Vandervell v IRC - A may not want to benefit B, but he also clearly didn't mean to declare a trust for himself
