Trusts Flashcards

1
Q

Trustee is under fiduciary duty to

A
  • manage
  • invest
  • safeguard
  • administer
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2
Q

Types of Express Trusts

A
  • Inter vivos
    Or
  • Testamentary
  • Private
    Or
  • charitable
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3
Q

Types of Private Trusts

A
  • 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)
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4
Q

Implied Trusts

A

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)
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5
Q

Express Private Trust: three certainties

A

Intention to create the trust
Subject matter (property)
Object matter (beneficiaries)

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6
Q

Certainty of Intention

A
  • 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)
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7
Q

Certainty of Subject Matter

A

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

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8
Q

Certainty of Objects

A

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

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9
Q

Beneficiary Principle

A

Trust must have ascertainable human beneficiaries

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10
Q

Trust

A

Arises in equity when a trustee holds a legal title for a property for the benefit of others

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11
Q

Trustee

A

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

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12
Q

Rules against perpetuity

A
  1. Remoteness of Vesting Rule:

Applies to contingent interest (contingent to some event)

Interest must vest within perpetuity period (125 years)

  1. 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

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13
Q

Creation of inter vivos trust

A
  1. Settlor declares himself as a trustee
  • declaration of trust (written for land or at least evidenced by the letter)
  1. 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)

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14
Q

every effort test

A

settlor did everything to transfer property and put property outside settlor control (transfer deed sent to registry example)

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15
Q

donation mortis causa

A

gift is valid if made in contemplation of immediate death (hospital example)

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16
Q

Strong v Bird

A

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)

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17
Q

propriety estoppel

A

gift is valid when beneficiary relies on assurance to their detriment (investing in a house to be gifted example)

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18
Q

Creation of Testamentary Trust

A

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

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19
Q

Secret Trust

A

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.

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20
Q

Half Secret Trust

A

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.

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21
Q

Beneficial Entitlement: Fixed Trust

A

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

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22
Q

Beneficial Entitlement: Discretionary Trust

A

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.

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23
Q

Beneficial Entitlement: Mixed Trust

A

Includes fixed and discretionary aspects (check study guide)

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24
Q

Saunders v Vautier

A

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.

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25
Q

Resulting Trust

A

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.

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26
Q

When Resulting Trusts Arise

A
  • Voluntary transfer or purchase in name of other
  • Failure to exhaust beneficial interest under express trust
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27
Q

Voluntary transfer or purchase in name of other

A
  • 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

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28
Q

Presumption of Advancement

A

Person making voluntary transfer or purchasing for money intended to make a gift

Applies in following situation:

1) husband/fiancé to wife/fiancée

2) father to a child

3) person in loco parentis to recipient (covers for a single mother)

Clear evidence shall be provided that no gift meant in order for presumption not to apply.

29
Q

Evidence to rebut presumption

A

Surrounding circumstances

Acts or declarations made before or at time of transfer

Illegal or fraudulent transaction (transfer to hide from taxes or creditors) the court will consider but take into account all relevant factors.

30
Q

Resulting trust arising on failure of express trust

A

1) trust terms are not sufficiently defined

2) contingent interest fails

3) half secret trust fails for lack of communication

31
Q

Trust of the Family Home:legal title is held in both names

A

Legal title held as joint tenants

Equitable trust - either joint tenants or tenants in common:

This is defined by declaration of trust (typically in property transfer form) which defines the shares in case tenancy in common and which is conclusive.

No express declaration of trust:
- equity follows the law (joint tenancy presumed)
- rebuttable by proof parties intended otherwise.

Court will look at arrangements and conduct between the parties:

  • Purpose of purchase
  • Nature of relationship between the parties
  • Manner in which finances are managed
  • Manner in which property related costs are managed
32
Q

Trust of the Family Home: Legal title in one name (no declaration of trust)

A

Express declaration of trust defines equitable shares

If there is no declaration of trust, ways to claim equitable interest:

  1. Proprietary estoppel

One was behaving in a way that the other one had reason to believe that he had the right in property and he acted to the detriment: a) assurance, b) reliance on this assurance and c) detriment (investment into renovation, care for the second party)

  1. Common intention constructive trust

Common intention: expressed (actual discussions on whom property actually belong, intention to live together is not enough) or inferred (actions, like contributions to mortgage, major reconstruction, common expenses to allow to pay mortgage)

Reliance to the claimant’s detriment on common intention (minor actions are not sufficient)

The court will define the share by focusing on parties intentions (in express agreements or course of dealing between the parties)

33
Q

Types of Purpose Trusts

A

Charitable trust

Trust for private purposes

34
Q

Charitable Trusts

A
  1. Certainty of objects doesn’t apply
  2. Cy-press doctrine applies
  3. Rule against perpetuity doesn’t apply

Requirements:

  1. Defined charitable purpose
  2. Public benefit requirement
  3. Exclusively charitable.
35
Q

Defined Charitable Purpose

A

Recognisable charitable purposes are defined by charitable act 2011 (poverty, education, science, human rights, environment, etc)

36
Q

Public Benefit

A

Trust gives identifiable benefit to public

If the benefit is available only to those with a particular connection with a particular person (children of my employees) the trust will fail for lack of public benefit.

Exception - trust for the relief of poverty (as long as particular names of individuals are not mentioned)

Charitable trust for paying salaries to key stuff will not prevent it from being charitable

Political purposes are not considered to be charitable (if political purpose is secondary to main purpose, trust will not fail)

37
Q

Whollly and exclusively charitable

A

Non-charitable purposes as ancillary purpose to main charitable one will not invalidate trust

If several purposes, each has to be charitable

38
Q

Who enforces charitable trust on behalf of the public

A

Attorney General

39
Q

Charity to Charity exception

A

Rule on perpetuity doesn’t apply

There is still a requirement that initial gift vests within 80 years but subsequent gift from one charity to another can take place at any time in the future.

40
Q

Charity to Charity exception

A

Rule on perpetuity doesn’t apply

There is still a requirement that initial gift vests within 80 years but subsequent gift from one charity to another can take place at any time in the future.

41
Q

Cy-Pres Doctrine

A

If trust charitable purposes are impossible or impractical to carry out the court can apply charitable property for a different but similar charitable purpose and the trust will not fail.

Initial failure of gift:

Gift fails at the outset, the doctrine applies when general charitable intention of the settlor can be shown (no intent if the gift is to a specific named charity). The court will look at the will as a whole and if there is more than one charity gift it would be easier to established general charitable intent.

Subsequent failure of gift:

No general charitable intention needs to be established.

If the gift in a will look for the date of charity closure:

Before death of testator - initial failure
After - subsequent failure

42
Q

Non- charitable purpose trust

A
  1. Denley Trusts
    Underlying human beneficiaries can enforce trust (sports playground for kids of employees - employees can take enforcement actions but they cannot be treated as beneficiaries)
  2. Honorary Trusts
  • maintenance of animals
  • saying of private masses
  • maintenance of graves

Trust relies on the honour of a trustee to carry on, nobody can enforce. If he fails, the resulting trust occurs for the benefit of a settlor or settlor’s estate.

Perpetuity 21 years or human life plus 21 years. If trust can potentially be longer than that it will fail.

43
Q

Appointment of Trustees

A

Originally appointed by the Settlor.

Trustee must know about the appointment and actually accept it. No obligation to accept, not possible to partially accept.

If this didn’t happen the court may appoint trustee.

Once trust created the Settlor can appoint additional only if it is expressly provided in a trust document. Another person may have this power according to a trust document.

If not trustees may appoint additional trustees but they cannot increase the number of trustees for more than 4.

44
Q

Replacement of existing trustee

A

Reasons:
- died
- refuses to act
- unfit to act (breaches trust or seriously ill)

Who has the power to replace:

  • person named in trust document
  • continuing trustee
  • personal representative of the last surviving trustee
  • court

Shall be made in writing (deed)
Outgoing trustee can appoint a replacement (except the one removed against his will)

When beneficiaries can appoint trustees (give written instruction for appointment/replacement)

  • no one nominated in trust document
  • beneficiaries are of full age, have mental capacity, have absolute interest and have agreed unanimously

Court order - when it is expedient and when it is impractical and non-expedient to appoint without court assistance.

45
Q

Retirement and Removal of Trustees

A

Retirement without replacement

  • consent of co-trustees and any person named in trust document
  • at least two trustees or trust cooperation must be left in the office

Removal

Unfit to act (bankruptcy, breach of trust, illness, mental incapacity)

46
Q

Retirement and Removal of Trustees

A

Retirement without replacement

  • consent of co-trustees and any person named in trust document
  • at least two trustees or trust cooperation must be left in the office

Removal

Unfit to act (bankruptcy, breach of trust, illness, mental incapacity)

47
Q

Trustees’ Main Duties

A

Trustees are set to be in fiduciary position, must act

with loyalty
In Good Faith
In the best interest of the beneficiaries
Manage trust property appropriately
Avoid conflict of personal interest and role as a trustee

Main duties:

Duty not to profit personally

Duty not to buy trust property

48
Q

Trustee: self-dealing

A

Duty not to purchase trust property (not even on open market or in good faith)

Transaction may set aside with a property being returned to a trust with price refunded

Court may authorise under certain circumstances (minor dealing in trust plus open purchase in auction - case law)

Trustee may purchase beneficiary interest:

  • price paid must be fair
  • all material facts shall be disclosed to beneficiary
  • no abuse of position of the trustee
49
Q

Trustee: Duty not to profit

A

In case of personal profit constructive trust in favour of trust

for example, 1) appointment as a directly in a company with remuneration)

Exception - if trustee can show that they would have been appointed irrespective of their trustee role (example: trust 30 % shares and trustee 20% shares, trustee is appointed as a director, he would be appointed even if trustee will vote against him)

2) Personal profit from Opportunities or information gained in the trusteeship - information in a company run by trust, purchasing shares.

3) remuneration - trustee cannot charge remuneration just cover expenses.
Exceptions:
- charging clause or
- professional trustee
- trust corporation
- beneficiaries’consent
- court can authorise

50
Q

Trustee: other duties

A
  1. Must deal appropriately with trust property: preserve, make sure that it kept separately from trustee’s assets.
  2. Must observe the terms of the trust.
  3. Duty of care requires to act with a proper skill and care. Level of skill that is reasonable (any special skill that trustee has will be taken into account - higher standard will be expected from a professional trustee).
    Acting with prudence of ordinary person of business acting in relations to own affairs.
  4. Acting jointly as there is more than 1 trustee (trustees must make decisions unanimously unless the trust deed or the court authorises a majority decision).
  5. Duty to act personally and not delegating their role. Exceptions:
    - May delegate administrative functions but all decisions are made by the trustees

Entire role may be delegated for up to 12 months but trustee remains liable for the actions of attorney.

  1. Must take the property into joint possession and control ( the other trustee is liable if it is under control of one trustee and misappropriated)
  2. Keeping accounts and records and disclose them to beneficiaries when required.
  3. Duty to act impartially in relation to all of the beneficiaries and to treat them equally.
  4. Duty of confidentiality
  5. Duty to invest to generate income.
51
Q

Duty to Invest

A
  1. Authorised Investments
  • trustee has general power of investment for investments other than land (assets that do not produce income but increase in value - like antiques - are authorised investments).
  • investment in land outside UK is not permitted.
  • the land does not need to be income producing and can be just used for beneficiary to live in.
  • investments can be regulated by trust documents (allowing or restricting certain investments).
  1. Investment Criteria
  • suitability of type of investment to the trust
  • need for diversification
  1. Need for advice
  • proper advice of a person trustees reasonable believe to be qualified to give it (suitable experience and knowledge)
  • proper advice is not required if the trustee reasonably conclude that the advice is not necessary or appropriate (small amounts, short period of time)
  1. Keeping investment under review
  • act as a prudent business person

Delegation to investment manager is possible (statement on key info on trust shall be provided to such manager) - will not be liable if they follow the statutory procedures

  1. Moral standards shall be considered.

Trustee is not liable if they comply with all investment requirements (even if investments fail to perform).

52
Q

Power of Maintenance and Advancement

A

Allows trustee to earlier use income and capital in favour of beneficiaries in certain situations.

Derive from statute but can be restricted or extended by the trust document.

The powers are discretionary, trustee is under no obligation to exercise them

53
Q

Income

A

Money generated by the trust property

54
Q

Capital

A

Assets forming trust property

55
Q

Power of Maintenance

A

Applies to trust income

Beneficiary under 18 has no right to the income.

Income can be accumulated or
used for under-aged beneficiary maintenance and support.

Power applies when child beneficiary has interest in income.

The income can be used for maintenance, education or benefit as trustees see fit. Trustee pays either directly (to school, for instance) or to parents/guardians.

Income both of current and previous years can be used.

Power ends at 18 birthday, beneficiary can claim income as a right, unless the interest is contingent:

18 - claim all the income arising after birthday, accumulated - once the conditions of contingency are met.

Settlor may restrict the power of beneficiary to receive income after 18 in a trust document but the power of maintenance applies as trustee sees fit.

Any amount of income can be used to apply power of maintenance.

56
Q

Power of Advancement

A

Applies to trust capital, it is early release of trust assets

Beneficiary must have an interest in trust capital

Power is discretionary

Rules:
1. Amount must not exceed entitlement
2.Advances must be factored into final distribution
3. Consent of person with prior interest (the person shall be over 18 and of a sound mind)

Power of advancement applies to beneficiaries of all ages. For minor advance shall be used for specific purpose it was advanced for. It can be paid directly or to parents/guardians but trustees shall ensure that it is used for the purpose

57
Q

Power of control of beneficiaries

A

Beneficiaries may

  • compel trustees to fulfil duties (including court actions)
  • challenge exercise of discretion if irrational or outside their powers (trustees are not required to provide reasoning for their decisions)
  • inspect trust documents (trust instrument, accounts and minutes of trustees meetings) except if the documents contain information on discussions on the reasoning of taking the decisions, and query the inconsistencies
  • chose trustee and bring trust to an end ( 18, mental capacity, absolutely entitled to entire equitable interest and unanimous agreement)
58
Q

Breach Trust

A

If the act of trustee was not authorised by law or by trust instrument, it is a breach of trust.

If proper standard of care was not satisfied, this is also a breach of trust.

Beneficiary can bring a personal claim for losses resulting from breach of trust with interest.

59
Q

Liability of Trustee

A

Trustee must pay own money

Beneficiary must prove losses resulting from breach

Loss from one breach cannot be off-set by a gain arising from another breach (loss from poor investment against buying trust property as self- dealing)

Only the trustee who are responsible for breach will be liable (other trustee might committed a breach by failing to supervise trustee)

Liability of more than one trustee is joint and several.

60
Q

Defences available to Trustees

A
  1. Consent of beneficiary (provided that he knew all the key facts when consenting)
  2. Limitation period - 6 years. No limitation for fraud cases, cases to recover trust property from the trustee and cases for remainder interest (6 year starts when the remainder interest is available for the beneficiary)
  3. Exclusion clause (in trust documents) enforceable if there is no bad faith, intentional breach or recklessness. Exclusion clause for liability of fraud will not be valid
  4. Court concludes trustee acted honestly and reasonably and ought fairly to be excused
61
Q

Measurement of liability of Trustee

A

Trustee may be liable to the account (they must repay any losses to trust fund arising due to the breach)

Trust may be ordered to pay equitable compensation to a beneficiary to cover losses suffered by the beneficiary

62
Q

Sharing liabilities between trustees

A

Joint and Several

Anyone can be sued for full liability

The court may issue an order how liability should be shared between all the trustees in breach of trust. Nevertheless, if one trustee pays more than he is liable the other trustees must repaid what was paid excessively.

Court also can order one to indemnify another (this applies if one trustee is largely to blame for a breach - failure to supervise against fraud)

63
Q

Proprietary claim

A

Trustee required to return property to trust

If the value of trust property increase, the claim allows to claim back the property and take the benefit of this increase

64
Q

Tracing against trustees

A

Process of identifying trust property in hands of trustees

  1. Trust property not mixed: claim back property or claim charge over asset (buying jewellery example)
  2. Trust property mixed: claim a proportionate share or claim charge over asset (if asset increased in value - claiming back proportionally)
  3. Trust Funds mixed with trustee-s funds: claim charge over amount of trust, trustee is treated as withdrawing own money first. If the asset purchased first - beneficiary can claim a charge over asset even if purchased first (but trustee may also return money to trust)
  4. Mixed funds from two trusts to buy asset: beneficiaries of two funds share assets proportionally
  5. Funds from two trusts mixed in a bank account:

Current account: first in first out (if applying the rule is against wishes of the parties, impractical, unjust to the parties, contrary to express or implied intentions of the claimant- court can apply proportionate solution)

Saving account: proportionate solution

65
Q

Liability of Third Parties

A
  1. Bona Fide Purchaser
  • paid for property in good faith and without notice of trust
  • beneficiaries have no claim
  1. Innocent Volunteer Recipient
  • received trust property without paying but with no knowledge or suspicion of trust
  • no personal claim but proprietary claim (property must be identifiable)
  1. Knowing Recipient
  • received trust property with knowledge of breach of trust ( willfully ignored the matters that should raise concerns, fail to make enquiries that reasonable person will make)
  • personal claim and proprietary claim
  1. Dishonest accessory
  • facilitated breach of trust dishonestly (active or passive - solicitors example)
  • personally liable as if trustee (no proprietary claim as he most likely didn’t receive property being an accessory)
66
Q

Équitable Remédies

A

Supplement to cases when standard damages will not deliver justice

Court has an absolute discretions

Principles:

  1. Legal or equitable right
  2. No suitable remedy at common law (damages are not adequate remedy)
  3. Enforcement must be feasible (court should be able to supervise enforcement)
  4. Balance of the hardship
  5. Claimant is not guilty in any conduct
67
Q

Professional fees for trustees

A

If another trustee agrees in writing (if there is only one trustee, they can appoint a second one)

68
Q

Chattels: what is required for trust to be valid

A

The chattels have to be transferred by delivery or by deed