Trusts Flashcards
What are the 3 certainties for creation of an express private trust?
- certainty of intention
- certainty of subject matter
- certainty of objects
What are key elements of certainty of intention?
- May be spoken or written, no form needed nor does word trust need to be used
- Precatory language not sufficient eg hope
- Settlor must have intention when owned property and must intent for the trust to take place immediately
What happens if there is no certainty of intention?
Trust void.
Trust property passes to person who would have been trustee as a gift
What are some features of certainty of subject matter?
-must be objectively definable. eg bulk not valid, reasonable income valid. Must be clear and identifiable.
- fractional shares - if tangible property (things that can be touched eg wine bottles), not valid unless segregated from other items. If intangible (can’t be touched eg shares) valid.
- trust property must be existing interest in property, not expectation
- beneficiaries entitlement must be certain
What happens if a trust is void for certainty of subject matter?
Void, property reverts to settlor
What are some features of certainty of objects?
- Bs must be defined with sufficient certainty
- may be name or concept
- if concept must be objective eg nephew or employees, not subjective eg my friends
- tests apply where concepts used to define class what test depends on whether trust is discretionary or fixed.
What is the complete list test?
- used where fixed trust and concept used to describe beneficiaries eg my children or my nephews
- T must be able to draw up a compete list of beneficiaries in order to distribute.
- Bs must be named or described in such a way that is is possible to make a complete list
- Bs need not be in existence at date of trust but need to be ascertainable by time interest comes into enjoyment
- if fund to be distributed between group of people who are described but not named, the description must be conceptually certain and there must be evidential certainty.
- not being able to find B doesn’t make void. Trustees can apply to court in respect of missing B & distribute fund
Example
Trust for my best friends might be uncertain whereas trust for my former employees may be valid but records needed to show that they are part of that class.
What is the given postulant test?
- used where discretionary trust and concept used to describe Bs
- description of class must be clear enough that it can be said with certainty that any given individual is or is not a member of that class that may benefit. Must be objectively certain.
- if evidential uncertainty about whether a person is within class or not, won’t cause trust to fail.
- if administratively unworkable, will fail. If objects too wide to form a class. Eg all inhabitants of West Yorkshire
Example
Trust for Directors, ex directors, relatives, dependents is valid as can define with objective certainty.
What happens if a trust is void for uncertainty of objects?
Void, resulting trust in favour of settlor or settlors estate presumed.
What is the beneficiary principle?
Trust must have asvertainable human beneficiaries to enforce. If none, will fail and T holds property on trust for settlor or their estate.
Trusts for purposes will fail however there are exceptions:
- honorary trusts
- charitable trusts
What are the rules against perpetuity?
Prevent settlor creating trusts that last for long time. If scope to extend for longer, will fail.
2 rules
1) remoteness of vesting rule - applies to contingent interest. Trust void if does not vest within period - 125 years for trusts after 2010
2) inalienability rule - only to express trusts for non charitable purposes, only valid if limited to 21 years or for rest of living persons life + 21 years.
What is needed for a valid express inter vivos trust?
- Certianty of intention
- Certainty of subject matter
- Certainty of objects
- Identifiable beneficiaries
- Vests within perpetuity rules
- Trustee selected
- Validly created
How is an inter vivos trust created?
Settlor either:
- declares themselves as trustee
- makes declaration of trust to another with transfer of property
What must a settlor show to validly declare themselves trustee?
- intent in words or conduct to be legally bound
- requirements of certainty, beneficiaries principle and perpetuity rules be satisfied
- if land, declaration must be in writing and signed
If a Settlor creates a trust by transfer to another with a declaration of trust what must be satisfied?
1) settlor must transfer trust property to trustee and
2) the settlor must make a declaration of trust
What are requirements for a declaration of trust?
No formal requirements for trust of personalty
If land, must be written evidence and signed.
What is required for transfer when creating a trust?
Legal title must be transferred from one party to another to constitute the trust.
Land - transfer to HMLR
Chattels - delivery and intention, may be by deed
Shares - STF & registration with company
Bank account - signed written notice to bank
If Settlor fails to make transfer, will equity assist and enforce?
No, equity will not assist a volunteer. Trust will fail.
Exceptions to this however.
What are the exceptions to the maxim equity will not assist a volunteer?
Every effort test
- S did everything required to transfer and put outside control. Enforceable. Applies to land and shares where signed form etc and handed over but registration not completed.
Donatio Mortis Causa (gift by reason of death) gift may be enforced if:
- donor delivers property to T whilst in contemplation of imminent death
- with intention that T holds on trust for X if donor dies and returned if D survives
- and D dies
Strong v Bird
- if S died before transfer made and T becomes PR, trust usually found to be valid.
Proprietary estoppel
- if donee can prove reliance on assurance and acted to detriment, may be enough to establish completed
What are the requirements of donatio mortis causa?
1) Donor delivers property to trustee when in contemplation of immediate or impending death (objective basis needed)
2) with the intention that property be given to hold on trust for X if donor dies and returned to donor if survives (conditional on death)
3) and the donor dies
Trust made out if satisfied
What is the rule in Strong v Bird?
If person intending to create trust died before property transferred and trustee then becomes personal representative, trust valid.
Donor must have continuous unbroken intention to give gift between initial intention and appointment as PR
If evidence to suggest changed mind before died, rule doesn’t apply. Eg will changed after declaration.
What is required to establish proprietary estoppel?
1) Donee relies on assurance
2) in relying on that assurance, acted to their detriment
3) reliance was reasonable
What is needed for the creation of a testamentary trust?
- Must be contained in validly executed will
- All terms must appear in will
- 3 certainties
- Beneficiary principle
- Perpetuity rules
- No requirement to transfer to trustee as vested in PR on death
What’s a half secret trust?
Existence of trust revealed in will but beneficiary not identified.
Can a half secret trust be enforced?
Yes
- Identify of B must be communicated to Trustee at or before making the will. Will cannot refer to future communication.
- silence = implied acceptance
- Language of will must be consistent with communication.
What is a secret trust?
- contained in will
- looks like outright gift to someone
Can a secret trust be enforced?
- B needs to prove terms by clear and convincing evidence.
- can be enforced by B even if communication describing trust not made until after will executed. Timing of communication to T irrelevant.
- if trustee expressly refuses to accept trust or didn’t know about trust until after death, no trust and trustee takes outright.
- if didn’t respond, acceptance implied.
What happens if secret trust void?
Trustee takes as outright gift
What happens if half secret trust fails?
T holds on resulting trust for S’s estate
T’s sole duty = transfer back to S’s estate
What’s the rule in Saunders v Vautier?
Beneficiaries can terminate trust if combined have absolute interest, all of age and sound mind.
Beneficiaries can call for trustees to transfer trust property to them and end the trust.
Trustee must obey and beneficiaries divide between them.
Applies to fixed and discretionary trusts. Fixed easier as interests fixed and must be no diminution. Discretionary harder as need to agree.
What are the requirements of Saunders v Vautier?
1) B has an absolute interest in the trust. Between them all Bs wholly entitled to property
2) All B’s are of full age and sound mind
3) All B’s in agreement
What is a resulting trust?
Trust implied by law based on presumed but unexpressed intention of settlor.
Equitable interest reverts to settlor or estate.
What are the 2 main types of resulting trust?
1) trusts arising following a voluntary transfer or purchase in the name of another
2) trusts arising on failure to exhaust beneficial interest under express trust
When may a resulting trust be implied?
- where X transfers legal title to Y without consideration and no evidence before or at the time why it was made. General rule that did not intend to make a gift and Y holds on trust for X.
- purchase money cases. X provides purchase money and legal title transferred to Y. Presumption that Y holds on resulting trust for X. If both contribute, held on trust for both in proportion.
What is the presumption of advancement?
Presumption of resulting trust doesn’t apply where X treated as being under moral obligation to provide financial provision for Y. Presumed that intended to make a gift.
X is husband or fiance
X is father
X stands in loco parents to Y
Can presumption of resulting trust and presumption of advancement be rebutted?
Yes by evidence to contrary. Could be:
- surrounding circumstances eg birthday gift
- acts and declarations made at time or before purchase or transfer.
- if evidence of illegal or fraudulent motive, court will decide if in public interest to allow claim. At courts discretion.
When will a resulting trust arise on failure of express trust?
Where the trust declared fails to dispose of entire equitable interest or fails for another reason eg failure of contingent interest or lack of certainty, or failed half secret trust.
Trustee not intended to have ownership so holds on resulting trust for S or S’s estate.
Duty = convey title back to S or Estate
What is considered conclusive in determining shares in a family home?
Declaration of trust stating proportion of shares. Conclusive in absence of fraud or mistake.
What happens if there is no declaration of trust and property held in both names?
Law presumes that equitable interest held as joint tenants like legal interest.
Can be rebutted by evidence and can prove intended otherwise.
Need to provide common intention
What will Court look at when deciding common intention?
Whole course of dealings and conduct. Including: advice received, purpose for which purchased, motivation, nature of relationship, children, finance arrangements
If legal title in sole name, how may the fact the property is held on trust for 2 people be established?
1) Express declaration of trust. Must in in writing and signed. Can be made when acquired or later. Generally conclusive but can be avoided if fraud, mistake or UD established, can be overridden by proprietary estoppel claim.
2) Common intention constructive trust imposed by court.
What is proprietary estoppel and what are the requirements?
Means of establishing an interest in property.
Claimant must show:
- representation or assurance made
- claimant relied on this and
- claimant incurred some detriment as a consequence of reliance. (Not just money, can be caring or work in lieu of payment)
What must the claimant show to establish a common intention constructive trust?
Claimant must show:
- parties had common intention, either express or inferred that C should have equitable interest in the property and
- Claimant relied on that to his detriment.
Claimant must show actual discussions that led to believe, must relate to ownership of land not sharing home or life.
When might court infer common intention?
Discretionary but:
- direct contribution to purchase price
- mortgage payments
- payment of household expenses to enable legal owner to pay mortgage
- substantial renovations by one party.
Claimant must show they relied on this to their detriment.
What does rely on to detriment require?
Significantly altered position in reliance. Minor acts eg decorating won’t suffice.
When is a purpose trust permitted?
- charitable trusts
- non charitable purpose trusts
What rules are charitable trusts exempt from and why?
- no requirement for ascertainable human beneficiaries
- can be for an abstract purpose ie no certainty of objects. Eg for relief of poverty
- may be perpetual. Not subject to rules against perpetuities. Can continue indefinitely. Initial gift must fall within perpetuity period but gift from one charity to another can take effect at any time.
- court may be able to apply cy-pres if impossible to carry out settlors intention.
Exempt due to benefits impose on society.
What are the requirements for a charitable trust?
- charitable purpose - exclusively charitable
- for public benefit
What purposes are charitable?
Charities Act 2011
- prevention of poverty
- advancement of education, religion, health, citizenship, development, arts, culture, heritage, science, sport, human rights, conflict resolution, harmony, equality, diversity, environment
- relief of those in need, ill health, disability, poverty
- animal welfare, armed forces, emergency services