Trusts Flashcards
Trustee is under fiduciary duty to
- manage
- invest
- safeguard
- administer
Types of Express Trusts
- Inter vivos
Or - Testamentary
- Private
Or - charitable
Types of Private Trusts
- Fixed
- Discretionary (settlor give a trustee discretion of how to share the assets between identifiable group of beneficiaries)
- Purpose Trust (established to benefit a specific purpose rather than people)
Implied Trusts
Equity applies trust although there was no intention to create trust in order to achieve a fair result
- Resulting (two persons buy property)
- Constructing (property misappropriated by a fraud)
Express Private Trust: three certainties
Intention to create the trust
Subject matter (property)
Object matter (beneficiaries)
Certainty of Intention
- Intention to place trustee under a binding obligation
- This can be done by word (written or spoken) or conduct (evidence of independent witnesses for spoken words or conduct)
- The property has to be in the ownership of the settlor
- The settlor has to have an intention to create trust immediately (no hope, wish or suggestion - precatory words - lack of certainty of intention, the receiver of the property becomes an owner not a trustee)
Certainty of Subject Matter
Clear Description of the Property
Part of the asset: tangible assets shall be segregated (non-tangible, like shares, not)
Property has to exist (property to be received expectancy - cannot be hold on trust)
Entitlements of the beneficiaries shall be clear
If uncertain trust will fail
Certainty of Objects
Clearly and Sufficiently defined
My Children/My former employees vs. my friends/my relatives
Fixed trusts:
Complete list test (it is possible to create a complete list of beneficiaries through the description)
Conceptual and evidential certainty required (for example, full records of the employees)
Not being able to find a beneficiary will not cause trust to fail - trustee can apply to court for an order to be able to distribute property even not being able to find beneficiary
Discretionary trusts:
Given postulant test (it must be possible to say with a certainty whether or not an individual is a member of class that can benefit - my descendants, their spouses and dependants, for example)
Conceptual certainty is required but evidential certainty not
Trust will fail if the class is so large that it makes the trust administratively not workable
If result fails, the law implies a resulting trust in favour of settlor or the settlor‘s successors
Beneficiary Principle
Trust must have ascertainable human beneficiaries
Trust
Arises in equity when a trustee holds a legal title for a property for the benefit of others
Trustee
At least one trustee is needed for inter vivos trust. No minimum or maximum number unless trust of land (here at least 2 or maximum 4 trustees).
If no trusty in testamentary trust court will appoint one.
If one trustee dies, a court can appoint a replacement.
“There is no requirement that there must be two trustees for a trust of land, only two trustees are required to give a valid receipt when the land subject to trust is sold” trust learning set 1 item 2
Rules against perpetuity
- Remoteness of Vesting Rule:
Applies to contingent interest (contingent to some event)
Interest must vest within perpetuity period (125 years)
- Inalienability Rule:
Applies to non-charitable purpose trust
Trust limited to 21 years or life in being plus 21years
If rules are not observed, the trust will fail
Creation of inter vivos trust
- Settlor declares himself as a trustee
- declaration of trust (written for land or at least evidenced by the letter)
- Settlor appoints another person/persons as trustee
- transfer of property (constituting the trust)
- declaration of trust (written for land)
If property was not transferred, trust will fail (equity will not step in, as the beneficiary didn’t pay to receive the gift), but there are exceptions:
a) every effort test: settlor did everything to transfer property and put property outside settlor control (transfer deed sent to registry example)
b) donation mortis causa: gift is valid if made in contemplation of immediate death (hospital example)
c) Strong v Bird: settlor dies before trust is constituted and intended trustee is settlor’s personal representative (the rule will not apply if the settlor changes their mind before their death)
d) propriety estoppel: gift is valid when beneficiary relies on assurance to their detriment (investing in a house to be gifted example)
every effort test
settlor did everything to transfer property and put property outside settlor control (transfer deed sent to registry example)
donation mortis causa
gift is valid if made in contemplation of immediate death (hospital example)
Strong v Bird
settlor dies before trust is constituted and intended trustee is settlor’s personal representative (the rule will not apply if the settlor changes their mind before their death)
propriety estoppel
gift is valid when beneficiary relies on assurance to their detriment (investing in a house to be gifted example)
Creation of Testamentary Trust
Valid Will
No transfer requirement at a time of creation
All terms must be expressed in the will except for secret trust and half secret trust
Secret Trust
Trust not revealed in will
Gift left to friend and settlor separately writes to a friend that the gift shall be held on trust for the benefit of Marry. Marry is also informed on the arrangement.
Beneficiary must prove terms of trust with clear and convincing evidence in order to be able to enforce it.
Timing of communication to trustee is irrelevant.
Trust fails if trustee didn’t accept it or didn’t know about it until after settlor’s death (friend can keep the gift to himself).
If trustee just didn’t respond to an info on trust, his acceptance is implied and trust will be enforceable.
Half Secret Trust
Trust revealed in will but beneficiary not identified
In the will settlor leaves a gift to a friend stating that the gift is left for the purposes the settlor made known to a friend.
Communication on beneficiary’s identity must be made on or before will execution.
Will cannot refer to future communication (I will inform trustee on a purpose..)
The trust will fail and a friend shall hold the gift on resulting trust to convey the gift back to estate and the gift will pass according to other terms of the will.
Beneficial Entitlement: Fixed Trust
specific interest of each beneficiary is clearly defined
Can be vested and contingent
Vested - no conditions attached to the interest (if beneficiary dies, his interest will be passed to next of kin
Contingent - condition attached to the interest (if beneficiary dies before condition is fulfilled, he will receive nothing and the gift will go to whoever is on the will of settlor)
Limited interest - no right to trust capital
Absolute interest - right to capital and income
Beneficial Entitlement: Discretionary Trust
Trust may give trustee absolute discretion how to distribute the property
No potential beneficiary can demand for any payment but each potential beneficiary can claim a breach of trust.
Beneficial Entitlement: Mixed Trust
Includes fixed and discretionary aspects (check study guide)
Saunders v Vautier
Beneficiaries can terminate trust if they
- together have absolute interest
- are adults (over 18) and of sound mind
Trustee must obey a request.
Cannot be applied if one beneficiary is a minor.
Resulting Trust
Resulting trusts are implied by law based on a presumed intention of the settlor in situations when the Settlor has not expressed the intention to create a trust.
If this trust is implied equitable interest is created in the property that goes back to the Settlor if the Settlor is still alive or to the Settlor estate if he died.
When Resulting Trusts Arise
- Voluntary transfer or purchase in name of other
- Failure to exhaust beneficial interest under express trust
Voluntary transfer or purchase in name of other
- Gift without consideration - the receiver is holding on trust and should return the property to the giver (asset is already owned by a person making a transfer)
- Property purchased in name of one person but some or all of price paid by another (legal title only on one contributors into a purchase price example).
Criteria for property purchase for money: 1) money must be used to purchase property, 2) money must be provided at or before time title vest in trustee, 3) claimant has burden of proving they paid towards purchase price