Trusts Flashcards
1
Q
What are the 2 essential rules for trusts?
A
- 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
2
Q
What two types of trusts arise by operation of law?
A
Resulting
Constructive
3
Q
What are bare trusts?
A
Simply holding legal title
4
Q
What are the 2 methods of creating an express trust?
A
- 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
5
Q
What are the 4 requirements to create an express trust?
A
- 3 Certainties
- Beneficiary Principles (must be identifiable beneficiaries save for exceptions)
- Perpetuity Rules/Formalities (declaration & constitution of trust)
- Registration
6
Q
What are the 3 certainties?
A
Intention
Subject Matter
Objects
7
Q
What is certainty to intention?
A
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
8
Q
What is certainty of objects? What are the 2 tests?
A
Identify who is meant to benefit
Fixed Trust: complete list test with conceptual and evidential certainty
Discretionary: is/is not test with conceptual certainty
9
Q
What is certainty of subject matter?
A
Must identify trust property and the nature/extent of beneficial entitlement
10
Q
When could certainty of subject matter fail from description?
A
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
11
Q
When will no intention be inferred from other certainties?
A
Where subject matter/objects are so vague that the only sensible inference is that there’s no intention at all
12
Q
What are the advantages of having a beneficial equitable interest?
A
Interest can be enforced against everyone (except Equity’s Darling)
Can claim interest in traceable proceeds
Interest is unaffected by trustee’s bankruptcy/insolvency
13
Q
What is a fixed interest trust?
A
Settlor sets out entitlement for each beneficiary (or whole trust is for sole beneficiary)
14
Q
What happens where there are multiple beneficiaries for a fixed trust but uncertainty with some identities?
A
Trust may not fail completely
If identifiable ones have entitlement not dependent on uncertain ones, they can take their interest
15
Q
What is a power of appointment?
A
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
16
Q
If a trustee is given a power of appointment, what kind of power is it, and the consequence? And if not a trustee?
A
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)
17
Q
What words suggest a discretionary trust vs power of appointment?
A
Discretionary: ‘must’
Power: ‘may’
18
Q
What are discretionary trusts?
A
Trustees must exercise discretion and do so within a reasonable time
19
Q
If trustees of a discretionary trust don’t exercise it, what can beneficiaries do (and not do)?
A
Can sue to enforce trust and ensure discretion is exercised
Cannot compel them to exercise it in their favour
20
Q
What trustee obligations are there for a discretionary trust?
A
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
21
Q
What happens with a discretionary trust and a power of appointment where the class of objects is too wide?
A
Discretionary = void
Power = remains valid
22
Q
What formalities are there to create an express trust of land?
A
Manifested and proved
By some writing (evidence of intention and its terms)
Signed by some person able to declare such trust (or by will)
23
Q
What formalities are there to create an express trust (not of land)?
A
No real formalities, just must satisfy requirements e.g. certainties
24
Q
What are consequences of not complying with formalities to create a trust?
A
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
25
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
26
What is constitution?
Transfer of legal title
27
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
28
What is effect of constitution?
Disposition is irrevocable - settlor ceases to have any legal or beneficial interest in property
29
When will constitution fail for trust property? And for gifts?
Trust: if not vested in trustees
Gift: if legal title hasn't passed
30
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
31
What are the exceptions to principle of equity won't assist a volunteer?
1. Principle in Re Rose
2. Fortuitous Vesting
3. DMC
32
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
33
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
34
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
35
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)
36
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
37
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
38
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
39
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
40
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
41
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
42
What are charitable and non-charitable purpose trusts exceptions to?
The beneficiary principle
43
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
44
What is a charitable purpose trust?
1. Intention to apply property for a charitable purpose
2. Public Benefit Test
3. Be wholly and exclusively charitable
45
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
46
What does 'education' include for charity?
Training, research and broader education
47
What does 'environment' include for charity?
Includes conservation of a particular animal, bird etc
48
What does 'animal welfare' not include for charity?
Care for particular animals e.g. testator's pets (can be non-charitable trusts)
49
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
50
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
51
Can charities charge for their services and/or make a profit?
Yes and Yes
Can make a profit if reasonable and necessary
52
When is a charitable trust 'wholly and exclusively charitable'?
All purposes must be charitable
Cannot pursue political objectives (but can use political means to achieve non-political objectives)
53
What happens if there is a mix of charitable and non-charitable elements for a charitable purpose trust?
Trust will be void unless non-charitable purpose falls within a recognised category of non-charitable purpose trusts
If non-charitable purpose construed as 'incidental or subsidiary', trust remains effective
If they can be separation, portion of fund allocated to each and trust severed, recognising the charitable trust
54
What is the cypres doctrine?
Where a charitable purpose trust fails, any surplus funds are applied to another charitable purpose by Charity Commission or court scheme (if a general charitable intention is shown)
55
On what grounds can the original purpose of a charitable gift be altered?
1. Original purpose fulfilled or can't be carried out
2. Original purpose workable but doesn't provide a use for all property
3. Property from similar trusts combined to be more effective
4. Original purpose for area or class no longer relevant or suitable
5. Purpose has been adequately provided for, ceased to be charitable in law, or ceased to provide a suitable method of using property
56
What is the rule against inalienability and to whom does it apply?
Assets can't be tied up on trust for longer than a specified life in being plus 21 years (or just 21 years if no life specified) - can't use animal lives
Must be clear from outset (no wait and see)
Applies to non-charitable purpose trusts
57
What should non-charitable purpose trusts include to ensure they comply with rule against inalienability?
An express perpetuity clause
58
What are the requirements for a non-charitable purpose trust?
Intended purpose very certain
1. Fall within recognised exception to beneficiary principle
2. Created by will
59
What are the exceptions to beneficiary principle for non-charitable purpose trusts?
Trusts for maintenance of particular animals
Trusts for erection & maintenance of monuments and graves
Trusts for saying of private masses (if for public benefit)
60
What are resulting trusts?
Arise where a legal owner has transferred ownership to a 3rd party but, equity recognises that they should retain/regain beneficial interest
61
What 2 categories of resulting trusts are there?
1. Automatic: default trusts that arise when transfer on trust fails, either wholly or partly - trustees hold property on trust for settlor
2. Presumed: a person make a gratuitous transfer of property to a 3rd party, equity raises presumption of a resulting trust - this can be rebutted by evidence that transferor did not intend property to held on trust for them
62
What is the starting presumption for trusts of family homes?
Beneficial ownership of land mirrors legal ownership
63
What are common intention constructive trusts?
Mechanism for determining beneficial ownership, reflecting common intention of the parties
Common intention can either be express or inferred
64
What must be proven for a common intention constructive trust to arise in sole legal ownership cases?
Need to show they've acquired an interest, requiring proof of:
1. Common intention they'd have beneficial interest - must be actual intention, either express or inferred
2. Detrimental reliance on that intention (conduct otherwise inexplicable)
65
What must be proven for a common intention constructive trust to arise in joint legal ownership cases?
Must rebut presumption with reference to common intention (don't need to show reliance) - must be actual intention, either express or inferred
Arises where person is seeking to show beneficial TIC in equal or unequal shares
66
What factors are considered when determining common intention?
Advice or discussions (best evidence)
Reason legal title was registered in particular names
Purpose for acquiring house
Nature of relationship
If parties have children
How home was financed
Arrangement of finances and divided responsibility
67
Once common intention is found, what must be done for a constructive trust to arise?
Interests must be quantified
If there's an express intention as to this, courts will gift effect to it
If not, based on parties' conduct
At last resort, court will impute an intention for 'fair shares' based on whole course of conduct
68
What is not enough to show common intention? Is it possible for common intention to change over time?
Unequal financial contributions
Yes
69
Where a property was purchased in joint names and both contributed but kept their finances otherwise completely separate, what was held?
It was indicative that they didn't want a beneficial JT or to have equal shares
70
Words that indicate common intention for ownership:
Half yours
50:50
71
Words that don't indicate common intention for ownership:
Family home
Benefit... both of us
You'll be looked after
72
How else can common intention be evidenced?
By a legal ower providing an excuse as to why partner may not be jointly registered
However, inferences shouldn't be drawn too readily and not inferred where legal owner made excuse to avoid an argument
73
When has common intention been declined?
Individual caring for her family
Woman gave up career or worked without pay
Despite woman making very substantial improvements to property and gave up job to work for man's business so he could make payments
74
What should be taken into account when determining common intention?
Indirect financial contributions
75
What are examples of sufficient detrimental reliance?
Heavy DIY
Renovations
Payment of substantial expenses
76
What are examples of insufficient detrimental reliance?
Decorating
Giving up work to look after children
77
What is proprietary estoppel?
Enables a person to informally acquire property (or personal) rights to prevent unconscionable conduct
78
In what situations regarding real property is proprietary estoppel encountered?
1. A mistakenly believes they have a right in land owned by B, and in reliance on that, act to their detriment where B is aware of mistake but doesn't try to correct it
2. B assures A they have or will acquire a right in relation to B's property and in reliance on that, acts to their detriment
79
What are the requirements for proprietary estoppel?
1. Assurance (must be clear enough, can be inferred or explicit)
2. Reliance on assurance
3. Detriment due to reliance
4. Unconscionable for D to go back on assurance
80
How is reliance shown for proprietary estoppel?
There must be a sufficient link between assurance and detrimental conduct, but doesn't have to be the sole cause
Presumed reliance found where assurance made and C acts detrimentally, transferring burden of proof onto the D
81
What are examples of detriment for proprietary estoppel?
Expenditure, providing services without payment or less than market value, passing up opportunities, subordination to D
82
What remedies are there for proprietary estoppel?
Transferring ownership
Holding property on trust
Granting C property/personal right
Paying money
83
What principles regulate exercise of court discretion over the remedy used for proprietary estoppel?
1. Remedy shouldn't exceed C's expectation
2. Court may award a remedy which satisfies C's expectation, but not required
3. Remedy must be proportionate to C's detriment
84
What is recipient liability?
A personal claim against a recipient of misapplied trust property brought by beneficiaries
Only liable if recipient had requisite degree of knowledge
85
What are the requirements for recipient liability?
1. Misapplication of trust property
2. Beneficial receipt by D of misapplied TP (must be for his own benefit or in how own right)
3. D knew property was misapplied TP: if they dispose of/dissipate property before knowing, don't incur liability but as soon as they find out, should restore property to the trust
86
When would someone trace property, rather than follow?
If original property has been substituted and if there's an equity's darling
87
What is accessory liability?
Personal claim against those who dishonestly assisted or procured the breach of trust
Must be dishonest
88
What are the requirements for accessory liability?
1. Trust in existence at material time
2. Trustee committed breach of that trust
3. D assisted trustee in committing breach: must have made planning, commission or obfuscation of breach easier for trustee - more than minimal
4. D's assistance was dishonest: actual state of mind and apply objective standard of ordinary decent people
89
What are the remedies for accessory liability?
Liable for loss incurred: C must show that but for breach, loss wouldn't have occurred
Potentially liable for profits but only if proportionate - not automatic right to profits
90
What types of duties do trustees owe?
Trustee duties (e.g. comply with trust terms, reasonable care and skill)
Fiduciary duties
91
What are the 2 fiduciary duties trustees owe?
No Conflict
No Profit
92
What is the no-profit rule and remedies for breach?
Fiduciary must not obtain an unauthorised benefit from their fiduciary position for themselves or 3rd party
Won't be able to retain profit: either account for profits (personal claim) or a constructive trust imposed (proprietary claim)
93
What is self-dealing and its effect?
Trustees shouldn't purchase trust property from trust or sell assets to trust as it's breach of no-conflict rule
Transaction = voidable
For company in which they hold shares, if they have a controlling shareholding, can be seen as self-dealing, if not, not self-dealing but still breach of no conflict
94
What is the no-conflict rule and how can a trustee avoid liability for fair-dealing?
Fiduciary should only be thinking about their principal
Fair-Dealing = trustee buying beneficial interest off beneficiary
To avoid liability, must show transaction was conducted fairly and didn't take advantage of B
Principals can also authorise by trust instrument or give fully informed consent
95
What are the consequences if breach of no-conflict rule?
Transaction = voidable
If it causes loss, can be sued personally
If principal profits from breach, can't obtain a remedy, but if fiduciary also profits, they can recover this
96
What general duty is on trustees?
To act honestly and in good faith, for benefit of beneficiaries
97
What is the difference between trustee duties and trustee powers?
Powers: authorised but not compulsory
Duties: mandatory
98
How can trustees be appointed?
Any person except a minor can be one
No fixed no necessary except for trusts of land where max is 4
Usually appointed by settlor and for testamentary trusts, may be named in will e.g. the executors may be named trustees as well
99
What methods are there for appointing replacement trustees?
1. Any express powers in trust instrument
2. Statutory powers
3. Beneficiaries exercising S v V rights
4. Charity Commission for Charitable trusts
5. The court
100
What is the general statutory power to appoint replacement trustees?
Exercised on death of trustee, where trustee is abroad for over 1 year, appointed trustee is a minor/lacks capacity, or trustee wants to retire/refuses/unfit
Exercised by persons nominated in instrument or by surviving/continuing trustees
If all trustees are dead, by PRs of last to die
101
How do beneficiaries exercising S v V rights appoint a replacement trustee?
In writing
Cannot be used where instrument contains express power to appoint trustees
102
When shouldn't the court appoint a trustee?
Where there's dispute between beneficiaries whether they'd be appropriate
103
How can trustees be removed?
Check trust instrument
General statutory powers extend to remove
Court can where trustee is bankrupt, lacks capacity or is a company in liquidation
Charity Comission
104
In what 2 ways can trustees retire?
1. Voluntary retirement
2. Direction of beneficiaries: in writing & all agree
105
How can trustees voluntary retire?
By deed
Where at least 2 other people or 1 trust corporation are there to act as trustees
Co-trustees & anyone else with power to appoint trustees consent
Should also obtain formal discharge of liability from beneficiaries
106
What is the trustees' duty of care?
Must exercise such care and skill as is reasonable
- Consider any special knowledge/experience a trustee has
- Standard of care higher for professional trustees
- Doesn't apply to all acts of a trustee
107
What is the power of investment for trustees?
A trustee may make any kind of investment they could make if absolutely entitled to the assets
Have a duty to invest where necessary
108
What must trustees do if they exercise the power to invest?
1. Consider standard investment criteria: (a) suitability (general & specific), and (b) diversification
2. Take advice
3. General duty of care
109
What rules are there for taking advice when exercising power of investment?
They are not bound to follow the advice but can't ignore it simply as they personally disagree with it - can only do so if a reasonably prudent trustee would do the same
Must obtain proper advice before exercising power & when reviewing instruments
Exception: don't need to seek advice if reasonably conclude it's unnecessary
110
What is the power to acquire land?
Trustees have statutory power to acquire freehold or leasehold in UK (not overseas)
Can be done for investment or wider purposes
If done for investment, relevant criteria apply
Statutory DoC applies
111
What is the power of delegation?
Can delegate powers of investment and to acquire land, but cannot for distributive obligations
Can't delegate to beneficiaries
Must be an appropriate agent, reviewed regularly with an agreement that complies with statute
For investment, must be evidenced in writing
112
What is the duty to distribute?
Trustees must not wait for beneficiaries who have a right to income/capital under trust to demand payment, must pay them as soon as possible
113
What is the power of maintenance?
Where a minor has a vested (or contingent) interest in trust, trustees can pay income as they think fit
Can be paid to child/parent/guardian or applied directly for child's 'maintenance, education or benefit'
Income not paid out must be accumulated but can be paid out after - accumulated income added to capital when reaches 18
Must be used for primary benefit of minor
114
What is the power of advancement?
A B who expects to receive capital from trust in future may wish to receive capital before it vests in possession
Can be used by both adult and minor B, vested or contingent interests
Trustees can pay up to 100% of entitlement before it vests at all but must get written consent of beneficiaries with prior interest, if they're of age and of sound mind
Must be providing an immediate financial benefit, ensuring money is used for purposes it was provided for
115
What different ways can a trustee commit a breach?
By acting outside powers
By failing to act in accordance with their duties
Acting in breach of fiduciary duties
116
Are trustees liable for breaches committed before their appointment?
No
But if they discover a breach, must commence proceedings otherwise could become liable
117
Are trustees liable for breaches once they retire?
They are liable for breaches committed before they retired
Only liable for breaches that occur after where:
a) trustee retired to facilitate breach
b) trustee parts with property in retiring without due regard
118
What remedies are there for breaches?
Where trustee misapplied TP, can seek to recover property/TP
If not possible to recover property or results in loss in trust value, seek compensation
Trustees only liable for losses where their breach is a 'but for ' cause
119
How can trustees avoid liability for breaches/wrongful distribution?
Advertising for claimants in national newspaper (after 2 months, they can distribute)
Retaining fund or paying money into court
Seeking court directions (or a Benjamin order)
Taking out insurance against wrongful distribution
120
How can trustee liability be excluded or limited?
1. Can have exclusion clause in instrument (not where breach is fraudulent)
2. Can rely on s61 TA 1925: gives court discretion to excuse trustee where they acted honestly and reasonably, and ought fairly to be excused
3. If they show they obtained fully informed consent or Bs acquiesced, operates as partial defence
121
What limitation period is there for bringing a claim for breach of trustee duties?
6 years (for beneficiaries vested in possession)
Doesn't apply for fraudulent breaches or proprietary claims
122
What is the difference between following and tracing?
Following = following same asset as it moves hands
Tracing = identifying new asset as substitute for old
123
What is the difference between a wrongful and innocent mixture?
Wrongful: misapplied trust money & trustee's own money
Innocent: misapplied trust money & money from one or more innocent 3rd parties
124
What potential claims are there for beneficiaries where trust money has been misapplied with mixed funds?
1. Beneficiary claims beneficial ownership itself
2. Claims share of asset
3. Claims equitable lien over asset (where asset decreased in value)
4. Subrogation (where used to pay off debts)
125
What are the 3 different models for wrongful mixtures?
Hallett Model: trustee's drawings for own purposes are attributed to his fund and not trust funds
Oatway Model: if choice between traceable asset & dissipation, trustee treated as protecting trust fund & dissipating their own
Shalson Model: B can attribute trust money to most profitable use made (unless competing with unsecured creditors)
126
What are 2 examples of innocent mixtures?
1. Money from 2 or more trusts
2. Innocent recipient of misapplied money mixes it with their own
127
How are withdrawals attributed for innocent mixtures? (not for current bank accounts)
Rateably
128
How are withdrawals attributed for innocent mixtures? (for current bank accounts)
Ex post facto method: identify amounts contributed to account by each contributor attributing all withdrawals fractionally
Technically rolling charge method used but this much more common
