Trusts Flashcards
What are the 2 essential rules for trusts?
- Perpetuity: trust can’t last longer than 125 years
- Rule in S v V: beneficiaries can collapse a trust by trustees transferring legal title to them
What two types of trusts arise by operation of law?
Resulting
Constructive
What are bare trusts?
Simply holding legal title
What are the 2 methods of creating an express trust?
- Self-declaration of trust: settlor becomes trustee, retaining legal title, holding their assets on trust for beneficiaries
- Transfer on trust: settlor transfer legal title to 3rd party who holds on trust for beneficiaries
What are the 4 requirements to create an express trust?
- 3 Certainties
- Beneficiary Principles (must be identifiable beneficiaries save for exceptions)
- Perpetuity Rules/Formalities (declaration & constitution of trust)
- Registration
What are the 3 certainties?
Intention
Subject Matter
Objects
What is certainty to intention?
Must be requisite intention to impose/assume duty characteristic of a trust by words or conduct
Irrelevant if they don’t know what it is
Segregation of assets = key indicator
What is certainty of objects? What are the 2 tests?
Identify who is meant to benefit
Fixed Trust: complete list test with conceptual and evidential certainty
Discretionary: is/is not test with conceptual certainty
What is certainty of subject matter?
Must identify trust property and the nature/extent of beneficial entitlement
When could certainty of subject matter fail from description?
Where property can’t be ascertained from description e.g. ‘bulk’ or ‘net assets’
NOT for shares though, you can just say a number but for everything else, must identify specific objects
When will no intention be inferred from other certainties?
Where subject matter/objects are so vague that the only sensible inference is that there’s no intention at all
What are the advantages of having a beneficial equitable interest?
Interest can be enforced against everyone (except Equity’s Darling)
Can claim interest in traceable proceeds
Interest is unaffected by trustee’s bankruptcy/insolvency
What is a fixed interest trust?
Settlor sets out entitlement for each beneficiary (or whole trust is for sole beneficiary)
What happens where there are multiple beneficiaries for a fixed trust but uncertainty with some identities?
Trust may not fail completely
If identifiable ones have entitlement not dependent on uncertain ones, they can take their interest
What is a power of appointment?
A right to choose who, from within a specified class of objects, receives property
Not a trust
If exercised, have absolute discretion as to who benefits
Must satisfy is/is not test
If a trustee is given a power of appointment, what kind of power is it, and the consequence? And if not a trustee?
Trustee = fiduciary power (don’t need to exercise but must consider doing so periodically)
Not Trustee = personal power (don’t need to consider exercising it)
What words suggest a discretionary trust vs power of appointment?
Discretionary: ‘must’
Power: ‘may’
What are discretionary trusts?
Trustees must exercise discretion and do so within a reasonable time
If trustees of a discretionary trust don’t exercise it, what can beneficiaries do (and not do)?
Can sue to enforce trust and ensure discretion is exercised
Cannot compel them to exercise it in their favour
What trustee obligations are there for a discretionary trust?
Consider range of possible beneficiaries
Don’t require trustees to identify all people, just an appropriate survey of the class
Is/Is Not Test: trustee must be able to say with certainty whether any given individual is a member of the class or not
Requires conceptual certainty
For evidential certainty, it’s for C to prove that they’re within the class
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 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?
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 registered land, shares, choses in action, chattels and cheques?
Registered Land: valid deed, registration
Shares: sign stock transfer form & send to company; title passes when named entered in register
Choses in Action: notice in writing to debtor/bank
Chattels: by deed or gift; deliver with evidence of intention
Cheques: endorsing cheque by signing on back
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 are the exceptions to principle of equity won’t assist a volunteer?
- Principle in 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
a) Correct method of transfer used
b) Transferor done everything w/in their power
c) Documentation in hands of person capable of effecting transfer/transferor has put matter beyond their own control
Sending it to solicitor is not doing everything as solicitor agent of transferor
What is the principle of unconscionability in relation to Re Rose?
Might also apply where unconscionable not to do so - proprietary estoppel
1) Assurance
2) Reliance
3) Detriment
Must be unconscionable to go back on assurance
What is fortuitous vesting?
The intended recipient of a gift is also the PR of transferor’s estate, so gift is perfected on death
1. Intention to make immediate gift
2. Intention must continue until donor’s death
3. Intended donee becomes executor of donor’s estate
Must relate to existing property, not future
What is a DMC?
Gift made in contemplation of death
1. Gift made in contemplation of imminent death
2. Gift conditional on death
3. Delivery of property (not necessarily transfer of legal title, just part with control - can be constructive)
What rights do objects under a fixed trust have?
Proprietary Rights:
- May be vested or contingent
- Capable of sale/transfer
- Can be asserted against 3rd parties
- Rule in S v V
Personal Rights:
- Right to compel administration; be informed of entitlement once interest vests; sue trustees for breach
What are the requirements for the Rule in S v V?
Beneficiaries must be over 18, of sound mind and all agree
For contingent, defeasible interests, must all act together
What rights do objects under a discretionary trust have?
Rights Akin to Proprietary Rights:
- Seek return of misapplied trust property
- Rule in S v V (although unlikely used)
Personal Rights
What interest do objects of a discretionary not have?
Don’t have an equitable interest in the property until discretion is exercised in their favour
What is the difference between ‘vested in possession’ and ‘vested in interest’? How can they be defeated?
In Possession = current right to current enjoyment
In Interest = current right to future enjoyment
Vested interests can be defeated by a condition subsequent
What limits are there on the rule in S v V?
Beneficiaries cannot interfere in administration of the trust while it subsists
Cannot tell trustees how to perform their role
What are charitable and non-charitable purpose trusts exceptions to?
The beneficiary principle
What is the rule against remoteness of vesting and to whom does it apply?
A person or charity must obtain a vested interest in trust property within 125 years or it will be void
Doesn’t need to be clear from outset - the ‘wait and see’ rule can apply
Applies to individuals and charities but charitable trusts can exist indefinitely
What is a charitable purpose trust?
- Intention to apply property for a charitable purpose
- Public Benefit Test
- Be wholly and exclusively charitable
What heads of charity are there?
Prevention of relief or property
Advancement of education
Religion
Health
Citizenship or community development
Arts, culture, heritage or science
Amateur sport
Promotion of efficiency of armed forces, police etc
Those in need due to youth, age, ill health etc
Human rights, equality and diversity
Animal welfare
Environmental protection/improvement
What does ‘education’ include for charity?
Training, research and broader education
What does ‘environment’ include for charity?
Includes conservation of a particular animal, bird etc
What does ‘animal welfare’ not include for charity?
Care for particular animals e.g. testator’s pets (can be non-charitable trusts)
What can trustees do if there’s uncertainty as to how intention of a charity will be carried out?
They can direct that the property be applied for such charitable purposes as they select
What is the public benefit test?
a) Identifiable benefit: must be capable of being identified/described (even if not quantified or measured)
b) Beneficial to public, or section of public, not a private class: must not be negligible in number, must not depend on relationship to a particular person
Can charities charge for their services and/or make a profit?
Yes and Yes
Can make a profit if reasonable and necessary