Trust 5 Formalities & Constitution Flashcards
What happens with a discretionary trust and a power of appointment where the class of objects is too wide?
Discretionary = void
Power = remains valid
What formalities are there to create an express trust of land?
Manifested and proved
- By some writing (evidence of intention and its terms)
- Signed by some person able to declare such trust (or by will)
What if there is no written evidence?
The trust is unenforceable NOT void. This means that if, later, the transfer is evidenced in writing, the beneficiaries will be able to enforce their rights going back to the original date of creation of the trust.
What are the cases on oral agreements of land?
- A sold to B on the oral agreement that B would hold it on trust - held constructive trust created as would otherwise be fraud.
What formalities are there to create an express trust (not of land)?
No real formalities, just must satisfy requirements e.g. certainties
What are consequences of not complying with formalities to create a trust in land?
Renders the trust unenforceable (not void): beneficiary can’t enforce rights until requirements are satisfied & when they are, can enforce rights in respect of period before
What happens if formalities to create a trust are never satisfied?
- Trust remains unenforceable subject to anything rendering it unconscionable for settlor to deny the trust
- For transfer on trust, if settlor also makes no attempt to constitute, will be unenforceable and void for lack of constitution subject to unconscionability
What is constitution?
Transfer of legal title
How is constitution achieved for cheques?
- Cheques: endorsing cheque by signing on back
How is constitution achieved for registered land
- Registered Land: valid deed, registration
How is constitution achieved for shares,
- Shares: sign stock transfer form & send to company; title passes when named entered in register
How is constitution achieved for choses in action (debts and money in a bank account),
- Choses in Action: notice in writing to debtor/bank
How is constitution achieved for chattels?
- Chattels: by deed or gift; deliver with evidence of intention
What is effect of constitution?
Disposition is irrevocable - settlor ceases to have any legal or beneficial interest in property
When will constitution fail for trust property? And for gifts?
Trust: if not vested in trustees
Gift: if legal title hasn’t passed
What is the doctrine of equity will not assist a volunteer?
Equity won’t compel a settlor to transfer legal title i.e. won’t perfect an imperfect gift or treat it as a self-declaration of trust if constitution fails
What was Milroy v Lord and others
- tried to transfer shares to a trust but didn’t fill in share transfer form. Therefore, gift failed.
- father put cheque in baby’s hand saying it was for B but didn’t endorse cheque - no gift and no trust as intention was gift
What are the exceptions to principle of equity won’t assist a volunteer?
- Re Rose
- Fortuitous Vesting
- DMC
What is the principle in Re Rose?
Transfer of shares/land effective in equity once transferor has done everything in their power to effect transfer
- Correct method of transfer used
- Transferor did everything w/in their power
- Documentation in hands of person capable of effecting transfer/transferor has put matter beyond their own control
Would sending docs to your solls for them to deal with be within Re Rose?
No - Sending it to solicitor is not doing everything as solicitor agent of transferor
Would sending docs to the donee for them to deal with be within Re Rose?
Yes
What is the principle of unconscionability in relation to Re Rose?
Might also apply where unconscionable not to do so - proprietary estoppel
1) Assurance (you’ll have the shares Harrold)
2) Reliance (Harold became a director)
3) Detriment (Harold took on duties as director)
Must be unconscionable to go back on assurance
What is fortuitous vesting?
(Strong v Bird)
The intended recipient of a gift is also the PR of transferor’s estate, so gift is perfected on death
- Intention to make immediate gift
- Intention must continue until donor’s death
- Intended donee becomes executor of donor’s estate
Must relate to existing property, not future
What case covers immediate gift for Strong v Bird?
- A promised car to B but it needed to be repaired
- A then lent car to C
Gift from A to B not immediate
