Vandervell essay

Question 1

The 4 key cases

Answer 1

Vandervell v IRC; Vandervell’s Trusts: Oughtred; Grey

Question 2

Who said re the 53)1)(c) requirement in vandervell that the greater includes the less

Answer 2

Upjohn

Question 3

Who thought that the Vandervell option was granted by the RCS?

Answer 3

Donovan (dissenting) and Wilberforce (majority) thought it was the college

Question 4

Who thought it was Vandervell taht really granted the option and why?

Answer 4

Upjohn (majority) - the college had no real choice

Question 5

Why did Donovan dissenting think that a resulting trust in Vandervell 1 was impossible

Answer 5

Because it was the college that granted the option, not Vandervell, so how could it result back to him?

Question 6

Who said that the shares in V1 were held on undeclared trusts and a beneficial interest cannot be up in the air

Answer 6

Wilberforce

Question 7

6 points to argue about the writing requirement in V1

Answer 7

1. Harris - type 1 hard case
2. Clear inconsistency with Grey
3. Undermines the aim of the statute (often no possession)
4. Wording of statute only concerned with equity
5. Green - will be confined to facts
6. Short cut / non shortcut - passive / active

Question 8

Was the decision re resulting trust in V1 justified?

Answer 8

Yes!

Question 9

What did Megarry say in Vandervells trusts AT TRIAL

Answer 9

2 types of resulting trusts - presumed and automatic. No evidence deed of release intended retrospectively?

Question 10

What did Denning say happened in V2

Answer 10

The exercise of the option created new valid trust which extinguished the resulting trust (born and dies without writing)

Question 11

4 points to make about V2

Answer 11

1. The equity was not the T Cos to dispose of, V was not a party
2. Absence of writing requirement for creation of resulting trusts doesn’t negate need for writing on destruction
3. Harris - hard case type 2
4. Green - termination is opposite to creation / operation

Question 12

6 points to make generally about certainty / the act

Answer 12

1. Green BOTH declarations and dispositions should need writing. Moffatt either or both
2. Green - difference between creating / moving equitable value and moving empty legal title is arbitrary
3. All the problems created by these cases are bc decided with one eye on tax
4. Green: 205(1)(x)
5. Change of proprietorship even if Ts the same
6. If B declares trust do they drop out or retain?

Question 13

What woudl have made Vandervell 2 fall under Grey?

Answer 13

If Vandervell had directed the Ts to hold for children rather than the Ts declaring it themselves

Question 14

3 points to make about Grey

Answer 14

1. Only difference between Grey and vandervell is that the Ts were different people
2. Woudl have been OK if H declared self T then retired
3. If the transfer only happened at point of declaration then, like V, the Ts had nothing to give and H was not a party

Question 15

2 points to make about Oughtred

Answer 15

1. Majority thought Ps remaining bare equitable title was extinguished with the release, minority thought it remained but was later discarded. Green agrees with the minority - on order for there to be a constructive trust / specific enforceability, there has to be something still vested in hiim
2. Later cases (non tax avoidance) have followed the minority.

Question 16

What’s the court’s apporach to dodgy dealings now?

Answer 16

Ingram - court will disregard extra steps and look to substance of the transaction

Question 17

What do you need to cover

Answer 17

V1 - writing - 6 points AND different views on option
V2 - 4 points
Grey - 3 points
Oughtred - 2 points
General - 6 points

Question 18

What points do you need to cover?

Answer 18

V1 - writing 6 points and judgments on option
V2 - 4 points
Grey - 3 points
Oughtred - 2 points
General - 6 points