The concept of trust and creation of express trusts Flashcards
What are the two core principles of equity
1) he who comes to equity must come with clean hands
2) Equity will not assist a volunteer.
In a trust who holds the legal and beneficial title?
The trustee holds the legal title, equitable or beneficial title goes to beneficiary.
What is an express trust?
For individuals to achieve a purpose.
What is an implied trust?
A resulting trust (presumed they would have created it) or constructed trust (implied to achieve fair result between parties involved).
What is a lifetime trust?
Takes effect during their lifetime, must make A) valid declaration of trust in will and B) ensure property is put into a trust.
Difference between a fixed interest trust and discretionary trust?
fixed interest trust leave no discretion to trustee, a discretionary trust does
What are the three certainties a declaration of trust must satisfy?
1) Certainty of intention
2) Certainty of subject matter
3) Certainty of object
What are the specifics of certainty of intention?
Must be clear they intended to create trust. Settler must have used words that impose a duty on someone to act as a trustee.
What are the specifics of certainty of subject-matter?
Must be clear how property is divided. property and beneficiaries defined with certainty.
What are the specifics of certainty of objects
Must be clear who beneficiaries are (fixed interest trust requires complete list).
What is the every effort test?
When settlor has done everything they can to transfer legal title, It may be regarded as complete. (Beyond recall)
What is the rule in [Strong v Bird] ?
If wanted to create a trust but didn’t get around to it, if same person is appointed as executor them having the legal trust through this is sufficient.
What is a contingent interest?
A conditional interest.
What is a vested interest?
Don’t have to satisfy conditions
What is required for an inter vivos trust ?
Declaration of trust (in writing) + transfer of title
What is the every effort rule ?
Trust will be valid if every effort has been made to create a valid Will - I.e put transfer form ‘beyond recall’ not just sign it and leave it in desk
If a valid trust is made but failed legal transfer what is the result ?
Equity may still recognise it as it would be unconscionable for the settlor to back out of constituting the trust
What is the rule under Saunders v Vautier?
Beneficiaries can end a trust and take property provided all beneficiaries:
- consent
- are adults
- be entitled to trust property
What is an additional requirement for trusts of land ?
Must be in writing
What is a main difference between fixed and discretionary trusts ?
Fixed requires complete list of beneficiaries
Discretionary must have conceptual certainty as to beneficiaries
