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UNI > Trusts > Flashcards

Trusts Flashcards

1
Q

formalities for a trust of realty

A

a contract to create a trust of land must comply with LP(MP)A 1989 s2- in writing and signed by both parties

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2
Q

formalities for testamentary trust

A

will must be valid- wills act s9
- in writing
- signed by testator or someone else in his presence,
- by signing they intended to give effect to the will,
- must be acknowledged by 2 witnesses present at the same time, those witnesses sign it

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3
Q

disposition of existing equitable interest formalities

A

must comply with s53(1)(c) LPA 1925- in writing, signed, stamp duty paid

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4
Q

what constitutes a disposition of an equitable interest

A

assignment (one person transfers their equitable interest to another in writing) or instruction to trustees to hold the equitable interest for another- must comply with 53(1)(c)

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5
Q

grey v irc

A

orally instructed trustees to hold shares on trust for his grandkids, and then completed documents to confirm this, but the documents were the things that disposed of the equitable interest so s53(1)(c) needed to be complied with

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6
Q

vandervell v irc

A

if you transfer the legal and equitable interest at the same time then 53(1)(c) doesnt apply

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7
Q

vandervell no 2

A

creation of a trust rather than a disposition of a beneficial interest

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8
Q

milroy v lord

A

equity doesnt assist a volunteer (someone with no consideration)
- It must be determined what was intended
- what was necessary to put that intention into effect
- what has been done – the settlor must do everything required to effect the transfer

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9
Q

re rose

A

equity considers the transfer complete when the settlor has done everything they can to divest themselves of the property

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10
Q

strong v bird

A

appointment as executor gets rid of the debt — borrowed money and the person died but made them executor so they obvs didn’t want the money back- cant go after yourself for the money

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11
Q

conditions for strong v bird to apply

A

donor must be shown to have the intention to make an inter vivos gift, must be continuing intention right up to date of death– only applies in a situation where the only thing missing is transfer of legal title

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12
Q

knight v knight

A

3 certainties- intention, subject, object

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13
Q

lambe v eames

A

“to be absolutely at her disposal in any way she may think best for the benefit of herself and her family” - was a gift not a trust

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14
Q

Paul v constance

A

joint account- money is as must hers as his- valid trust- words and conduct demonstrated intention to create a trust

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15
Q

midland bank v Wyatt

A

Wyatt settled family home on trust for wife and kids to escape creditors- wasn’t a trust because he didn’t want to change his relationship with the property

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16
Q

re abbots fund

A

deaf and mute ladies- fund made for them- they died- money went back - resulting trust for donators

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17
Q

re Andrews trust

A

education of kids of dead clergymen- money left over stayed with them cuz they were still alive

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18
Q

palmer v Simmonds

A

‘bulk of my estate’ no certainty in ‘bulk’- no clear meaning so no trust

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19
Q

re London wine

A

not segregated so no certainty so no trust

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20
Q

IRC v Broadway cottages

A

money settled on discretionary trust- complete list test- cant split equally if you dont know everyone in the trust

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21
Q

mcphail v doulton

A

Is or is not test

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22
Q

re Gulbenkian

A

authority for powers of appointment- is/is not test

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23
Q

how are trustees appointed for an inter vivos trust

A

either expressly or by declaring the trusts and transferring the property to the trustees- may be done by deed or multiple documents

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24
Q

how are trustees appointed for testamentary trusts

A

executors chosen to administer the estate may be described as executors and trustees, if they are just executors then they will become trustees once they have completed the administration of the estate

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25
Q

number of trustees for land

A

no more than 4 TA 1925, at least 2 to sell land to stop overreaching

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26
Q

circs for replacement of a trustee

A
  • death
  • trustee remains out of the country for more than a year
  • trustee wants to be discharged
  • trustee is unfit/incapable of acting
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27
Q

4 steps a trustee must take on appointment, failure to do so may make them liable for a breach of trust

A
  • find out the terms of the trust
  • inspect the trust instrument and other relevant documents
  • ensure that the trust property is vested in the joint names of all trustees
  • make inquiries if suspicious of past breaches of trust
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28
Q

speight v gaunt

A

take such care as an ordinary prudent man of business

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29
Q

nestle

A

bank should have familiarised themselves with the trust instrument to know the scope of their powers of investment— but the claim failed because she couldn’t prove if it had been invested less conservatively that she would have gained money

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30
Q

bristol and west v mothew

A

fiduciary relationship- relationship of trust and confidence

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31
Q

Boardman v Phipps

A

used info he learnt at board meetings (that he was only at because he was a trustee) to make profits- in breach of trust because he was acting as a fiduciary

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32
Q

keech v sandford

A

renewed a lease on trust property for a kid because the landlord wouldn’t let him renew it for the kids benefit as he couldn’t get rent off him if the need arose- no allegation of fraud but fiduciary cant make unauthorised profits- should have put it on constructive trust

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33
Q

where to find authority for authorised investments

A
  • trust instrument
  • s3-5 of TA 2000
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34
Q

Cowan v Scargill

A

ethics/personal opinion shouldn’t come in to the investments

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35
Q

power of maintenance and advancement where are they stated and what are they

A
  • trust instrument
  • s31 maintenance- getting income before entitled
    -s32 advancement- getting capital before entitled
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36
Q

wilson v turner

A

trustees paid the income to the infant beneficiaries father every year even though he hadn’t requested it- trustees had not exercised their discretion properly and were required to restore the cash to the fund

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37
Q

problem question maintenance

A
  • do the trustees have power to maintain at all, either under trust instrument or under s31
  • is the proposal for the beneficiarys maintenance, education or benefit?
  • how much income is available?
  • are there any past accumulations to make up for any shortfall?
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38
Q

re Paulings settlement trust

A

the advancements had been wrongfully made as they were primarily for the benefit of the patents

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39
Q

provisos for the power of advancement

A
  • the written consent of any person entitled to a prior interest is required
  • a beneficiary cannot be advanced more than their presumptive share
  • amounts advanced must be brought into account when the beneficiary becomes entitled to the capital
  • all of these can be removed or limited in the trust instrument to facilitate advancements
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39
Q

provisos for the power of advancement

A
  • the written consent of any person entitled to a prior interest is required
  • a beneficiary cannot be advanced more than their presumptive share
  • amounts advanced must be brought into account when the beneficiary becomes entitled to the capital
  • all of these can be removed or limited in the trust instrument to facilitate advancements
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40
Q

advantages enjoyed by charities

A
  • tax benefits
  • outside of the scope of the rule against perpetuities- as long as its a gift from one charity to another
  • dont need a specific beneficiary
  • less restrictive certainty requirements
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40
Q

advantages enjoyed by charities

A
  • tax benefits
  • outside of the scope of the rule against perpetuities- as long as its a gift from one charity to another
  • dont need a specific beneficiary
  • less restrictive certainty requirements
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41
Q

charities act 2011

A
  • statutory definition of charity- now 12 specific purposes and a general catch all category
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42
Q

definition of charity

A
  • s1(1)
    an institution which is
  • established for charitable purposes only
  • is subject to the High Court in the exercise of its jurisdiction with respect to charities
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43
Q

re best

A

“charitable and benevolent purposes”- held to be charitable

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44
Q

public benefit

A
  • must be beneficial
  • to a sufficient section of the public or the public generally
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45
Q

re coulthurst

A

“by reason of their financial circs are deserving of such assistance”- charitable

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46
Q

re gwyon

A

left money to provide knickers for the local boys- not charitable as it could benefit the rich as well as the poor

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47
Q

re scarisbrick

A

left money for such relations of her children that are in needy circumstances- charitable because it was for the relief of poverty and not just for her relatives

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48
Q

re shaw

A

left money to translate his plays into the 40 letter alphabet — not charitable- no educational merit or value

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49
Q

re koettgen

A

gave a preference for employees of a named company but said no more than 75% to them so it was charitable

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50
Q

Oppenheimer v tobacco securities trusts

A

not charitable to set up a fund for the education of a set group of people- kids of people who worked at tobacco company

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51
Q

thornton v howe

A

land was given to promote the publication of someone who believed they’d be the mother of the second messiah- charitable- wide view of religion taken- wouldn’t hold up today

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52
Q

national anti-vivisection Society v irc

A

not charitable if it is attempting to influence gov policy

53
Q

a contract to create a trust of land must comply with LP(MP)A 1989 s2- in writing and signed by both parties

A

formalities for a trust of realty

54
Q

will must be valid- wills act s9- in writing, signed by testator or someone else in his presence, by signing they intended to give effect to the will, must be acknowledged by 2 witnesses present at the same time, those witnesses sign it

A

formalities for testamentary trust

55
Q

must comply with s53(1)(c) LPA 1925- in writing, signed, stamp duty paid

A

disposition of existing equitable interest formalities

56
Q

assignment (one person transfers their equitable interest to another in writing) or instruction to trustees to hold the equitable interest for another- must comply with 53(1)(c)

A

what constitutes a disposition of an equitable interest

57
Q

orally instructed trustees to hold shares on trust for his grandkids, and then completed documents to confirm this, but the documents were the things that disposed of the equitable interest so s53(1)(c) needed to be complied with

A

grey v irc

58
Q

if you transfer the legal and equitable interest at the same time then 53(1)(c) doesnt apply

A

vandervell v irc

59
Q

creation of a trust rather than a disposition of a beneficial interest

A

vandervell no 2

60
Q

equity doesnt assist a volunteer (someone with no consideration) It must be determined what was intended, what was necessary to put that intention into effect, what has been done— the settlor must do everything required to effect the transfer

A

milroy v lord

61
Q

equity considers the transfer complete when the settlor has done everything they can to divest themselves of the property

A

re rose

62
Q

appointment as executor gets rid of the debt — borrowed money and the person died but made them executor so they obvs didn’t want the money back- cant go after yourself for the money

A

strong v bird

63
Q

donor must be shown to have the intention to make an inter vivos gift, must be continuing intention right up to date of death
- only applies in a situation where the only thing missing is transfer of legal title

A

conditions for strong v bird to apply

64
Q

3 certainties- intention, subject, object

A

knight v knight

65
Q

“to be absolutely at her disposal in any way she may think best for the benefit of herself and her family” - was a gift not a trust

A

lambe v eames

66
Q

joint account- money is as must hers as his- valid trust- words and conduct demonstrated intention to create a trust

A

Paul v constance

67
Q

Wyatt settled family home on trust for wife and kids to escape creditors- wasn’t a trust because he didn’t want to change his relationship with the property

A

midland bank v Wyatt

68
Q

deaf and mute ladies- fund made for them- they died- money went back - resulting trust for donators

A

re abbots fund

69
Q

education of kids of dead clergymen- money left over stayed with them cuz they were still alive

A

re Andrews trust

70
Q

‘bulk of my estate’ no certainty in ‘bulk’- no clear meaning so no trust

A

palmer v Simmonds

71
Q

not segregated so no certainty so no trust

A

re London wine

72
Q

money settled on discretionary trust- complete list test- cant split equally if you dont know everyone in the trust

A

IRC v Broadway cottages

73
Q

Is or is not test

A

mcphail v doulton

74
Q

authority for powers of appointment- is/is not test

A

re Gulbenkian

75
Q

either expressly or by declaring the trusts and transferring the property to the trustees- may be done by deed or multiple documents

A

how are trustees appointed for an inter vivos trust

76
Q

executors chosen to administer the estate may be described as executors and trustees, if they are just executors then they will become trustees once they have completed the administration of the estate

A

how are trustees appointed for testamentary trusts

77
Q

no more than 4 TA 1925, at least 2 to sell land to stop overreaching

A

number of trustees for land

78
Q
  • death
  • trustee remains out of the country for more than a year
  • trustee wants to be discharged
  • trustee is unfit/incapable of acting
A

circs for replacement of a trustee

79
Q
  • find out the terms of the trust
  • inspect the trust instrument and other relevant documents
  • ensure that the trust property is vested in the joint names of all trustees
  • make inquiries if suspicious of past breaches of trust
A

4 steps a trustee must take on appointment, failure to do so may make them liable for a breach of trust

80
Q

take such care as an ordinary prudent man of business

A

speight v gaunt

81
Q

bank should have familiarised themselves with the trust instrument to know the scope of their powers of investment— but the claim failed because she couldn’t prove if it had been invested less conservatively that she would have gained money

A

nestle

82
Q

fiduciary relationship- relationship of trust and confidence

A

bristol and west v mothew

83
Q

used info he learnt at board meetings (that he was only at because he was a trustee) to make profits- in breach of trust because he was acting as a fiduciary

A

Boardman v Phipps

84
Q

renewed a lease on trust property for a kid because the landlord wouldn’t let him renew it for the kids benefit as he couldn’t get rent off him if the need arose- no allegation of fraud but fiduciary cant make unauthorised profits- should have put it on constructive trust

A

keech v sandford

85
Q
  • trust instrument
  • s3-5 of TA 2000
A

where to find authority for authorised investments

86
Q

ethics/personal opinion shouldn’t come in to the investments

A

Cowan v Scargill

87
Q
  • trust instrument
  • s31 maintenance- getting income before entitled
    -s32 advancement- getting capital before entitled
A

power of maintenance and advancement where are they stated and what are they

88
Q

trustees paid the income to the infant beneficiaries father every year even though he hadn’t requested it- trustees had not exercised their discretion properly and were required to restore the cash to the fund

A

wilson v turner

89
Q
  • do the trustees have power to maintain at all, either under trust instrument or under s31
  • is the proposal for the beneficiarys maintenance, education or benefit?
  • how much income is available?
  • are there any past accumulations to make up for any shortfall?
A

problem question

90
Q

the advancements had been wrongfully made as they were primarily for the benefit of the parents

A

re Paulings settlement trust

91
Q
  • the written consent of any person entitled to a prior interest is required
  • a beneficiary cannot be advanced more than their presumptive share
  • amounts advanced must be brought into account when the beneficiary becomes entitled to the capital
  • all of these can be removed or limited in the trust instrument to facilitate advancements
A

provisos for the power of advancement

92
Q
  • the written consent of any person entitled to a prior interest is required
  • a beneficiary cannot be advanced more than their presumptive share
  • amounts advanced must be brought into account when the beneficiary becomes entitled to the capital
  • all of these can be removed or limited in the trust instrument to facilitate advancements
A

provisos for the power of advancement

93
Q
  • tax benefits
  • outside of the scope of the rule against perpetuities- as long as its a gift from one charity to another
  • dont need a specific beneficiary
  • less restrictive certainty requirements
A

advantages enjoyed by charities

94
Q
  • tax benefits
  • outside of the scope of the rule against perpetuities- as long as its a gift from one charity to another
  • dont need a specific beneficiary
  • less restrictive certainty requirements
A

advantages enjoyed by charities

95
Q
  • statutory definition of charity- now 12 specific purposes and a general catch all category
A

charities act 2011

96
Q
  • s1(1)
    an institution which is
  • established for charitable purposes only
  • is subject to the High Court in the exercise of its jurisdiction with respect to charities
A

definition of charity

97
Q

“charitable and benevolent purposes”- held to be charitable

A

re best

98
Q
  • must be beneficial
  • to a sufficient section of the public or the public generally
A

public benefit

99
Q

“by reason of their financial circs are deserving of such assistance”- charitable

A

re coulthurst

100
Q

left money to provide knickers for the local boys- not charitable as it could benefit the rich as well as the poor

A

re gwyon

101
Q

left money for such relations of her children that are in needy circumstances- charitable because it was for the relief of poverty and not just for her relatives

A

re scarisbrick

102
Q

left money to translate his plays into the 40 letter alphabet — not charitable- no educational merit or value

A

re shaw

103
Q

gave a preference for employees of a named company but said no more than 75% to them so it was charitable

A

re koettgen

104
Q

not charitable to set up a fund for the education of a set group of people- kids of people who worked at tobacco company

A

Oppenheimer v tobacco securities trusts

105
Q

land was given to promote the publication of someone who believed they’d be the mother of the second messiah- charitable- wide view of religion taken- wouldn’t hold up today

A

thornton v howe

106
Q

not charitable if it is attempting to influence gov policy

A

national anti-vivisection Society v irc

107
Q

situations which may give rise to a resulting trust

A
  • failure
  • purchase money resulting trusts- eg apparent gifts (equity presumes a gift was intended eg parent to child)
108
Q

4 ways a failure to dispose a beneficial interest creates a resulting trust

A
  • failure of a trust- re diplock
  • no trusts declared- vandervell v irc
  • incomplete disposal of the beneficial interest- abbot fund and Andrews trust
  • failure of a specific purpose- Barclays v quistclose
109
Q

how purchase money resulting trusts are made

A
  • purchase in the name of another
  • purchase by several in the name of one
  • presumption of advancement (POA)
110
Q

POA

A
  • works in opposition to and is stronger than the presumption of a resulting trust
  • where certain relationships exist a voluntary transfer is presumed to be by way of a gift
    husband and wife- Pettitt v pettitt- wife bought a house, husband made alterations etc- doesnt give him an equitable interest
    also covers parents transferring to kids
    if there is no POA because the transaction isnt between husband and wife, the presumption is one of resulting trust
  • can rebut POA by contrary evidence of intention- but not if it was based on an illegal purpose- Gascoigne v Gascoigne
111
Q

constructive trusts

A
  • one that comes into being without the need to comply with formal requirements- comes into being at the time of the relevant conduct, is based on wrongdoing and is independent of the intention of the constructive trustee
  • fiduciaries taking unauthorised profits- keech v Sandford, boardman v Phipps
112
Q

statutory implied trusts- proprietary estoppel

A

3 elements claimant has to prove
- representation
- reliance
- detriment

113
Q

gillet v holt

A
  • farm
  • told him not to go to college and he can have it
  • holt didnt put him in his will
  • gillet got the farm cuz of prop estop
114
Q

retirement of trustees

A
  • no automatic right to retire
  • can be express
  • or TA s39 gives conditions where you can
  • beneficiaries have to allow it and put it in writing
115
Q

trustees duties- use to decide if there has been a breach

A
  • to invest the fund
  • recover debts
  • distribute the trust property in accordance with the terms of the trust instrument
  • to protect the trust assets
116
Q

is the trustee responsible for the breach?

A
  • all have a duty to act
  • the fact that one is a solicitor doesnt reduce the obligations of other trustees unless they are controlling- Head v Gould
  • a trustee cant be held liable for breaches before he took up appointment or for breaches after retirement unless he retired to facilitate it
117
Q

ways a trustee can claim relief from liability

A
  • express provisions in the trust instrument- armitage v nurse
  • statutory relief may be granted by the courts
  • where a beneficiary is involved- re Somerset
  • beneficiaries can release them from liability
  • retiring trustee can seek indemnity from co trustees
  • liability is joint and several if more than one is found liable
118
Q

limitation period for breach

A
  • 6 years from the date of the breach
  • or 6 years after their interest falls into possession
119
Q

fact pattern q for tracing

A
  1. there will be an initial fiduciary relationship to found the equitable proprietary claim by beneficiaries
  2. then consider whether the assets are mixed or unmixed and the rules- and the identity of the recipient
  3. consider that the result needs to be equitable- defences
120
Q

proprietary rights- and advantages

A
  • right in an asset eg a car that is good against third parties

advantages
- the success of a proprietary claim doesnt depend on the solvency of D
- a prop right is advantageous for beneficiaries- they could claim the asset even if it has inc in value– they may be able to claim more interest (get it from the date of receipt of the property- personal- only get interest from the date when liability is settled)

121
Q

when can’t you trace in equity

A
  • not possible to trace property to a bona fide purchaser for value with no notice (equitys darling)
  • not possible if given to an innocent volunteer
  • re diplock
122
Q

re diplock

A

to trace in equity need to show
- initial fiduciary relationship
- that the trust property is still identifiable
- there will be no inequitable result- the charities were innocent volunteers- so could only get the money they hadn’t spent- if money is spent to pay off debts or improve land then its not possible to trace

123
Q

pipkin v karpnale

A
  • change of position defence
  • solicitor gambled money belonging to a client
  • because the casino had changed its position in allowing the gambling (took the risk they might win) and acted in good faith they could set off the winnings against the money they had to repay
124
Q

mixed fund

A

re hallet- if a trustee spends trust money and their own money it is presumed they spent their own money first to keep them honest
but
re oatway- if trustee is then bankrupt and cant pay back the beneficiaries it flips so money spent on an asset is presumed to belong to beneficiaries so they can get some money back

125
Q

royal Brunei v tan

A

requirements for dishonest assistance (dont have the property just helped move it alone)
- trust or fiduciary duty
- breach of duty
- stranger assisted
- stranger has a degree of knowledge

126
Q

what is dishonesty?

A

1995 royal Brunei airlines v tan- based upon acc knowledge was Ds conduct dishonest according to the standards of ordinary honest people?
2002 - Twinsectra v Yardley
- Dishonest to the standards of ordinary honest people and did they appreciate that?- combined
2005- Barlow Clowes v Eurotrust
- Go back to royal brunei airlines v Tan
2017- Ivey v Genting Casinos
- Actual state of d’s knowledge/belief and is that dishonest by the standard of ordinary honest people
2019-Group 7 v Notable
- was the defendants conduct honest or dishonest according to the standards of ordinary honest people?

127
Q

el Anjou v dollarland holdings

A

requirements for knowing receipt
- disposal of assets in breach of trust/fiduciary duty
- beneficial receipt of assets by stranger
- knowledge the property is traceable to the breach

128
Q

5 states of knowledge- baden

A
  • actual knowledge
  • wilfully shutting ones eyes to the obvious
  • wilfully and recklessly failing to make such inquiries as a reasonable and honest man would make
  • knowledge of circs which would indicate the facts to an honest and reasonable man
  • knowledge of circs which would put an honest and reasonable man on inquiry
129
Q

remedies for stranger liability

A

dishonest assistant- personal only as they dont have property
knowing recipient- prop or personal but need a level of knowledge for personal
can use tracing too

130
Q

agip v Jackson

A

take property under control or possession- beneficial receipt

131
Q

bcci v akindele

A

unconscionable for the recipient to retain the benefit- depends on the state of their knowledge- Baden

132
Q

brinks

A

positive act- stranger assisted

UNI (17 decks)

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