Weeks 1-4

Question 1

The Three Certainties

Answer 1

1. Intention (to create a trust);
2. Subject-matter (the property subject to the trust);
3. Objects (beneficiaries).

Question 2

Certainty of Intention

Answer 2

Evidence can be words or conduct
Important to distinguish between imperative words, which show an intention to create a legally binding obligation; and precatory words, which merely express a mere hope or a wish.

Question 3

Certainty of Subject

Answer 3

Beneficial entitlements – It must be certain what part of the property each beneficiary is entitled to or how their beneficial entitlements will be determined.
Property – It must be certain what property is subject to the trust

Question 4

Property forming part of a bulk

Answer 4

Tangible Property – Does not matter if all items are identical, must be specific about which are on trust, or there is no trust formed.
Intangible Property – If units are identical then do not need to specify which are on trust.

Question 5

Certainty of Object in a Fixed Trust

Answer 5

Use the “Fixed List” Test

Question 6

Certainty of Object in a Discretionary Trust

Answer 6

• Unclear
• Re Baden’s Will Trust, Issues with conceptual certainty of “Relative”
• 3 Different

Question 7

Certainty of Object in Powers of Appointment

Answer 7

Use the “In/Out” Test

Question 8

Certainty of Object in Gifts Subject to Condition

Answer 8

Held to a different standard to discretionary trusts e.g. “friend” was considered sufficiently clear in a gift but not in a discretionary trust

Question 9

Declarations of Trust in General

Answer 9

Trusts on Death: S9 Wills Act 1837 – Must be signed and in writing + signed by 2 witnesses
Life time trusts: Can be made informally by oral declaration or conduct
For Equitable Interests: In writing and validly constituted

Question 10

Declarations of Trust in Land

Answer 10

Comply with S53(1)(b)LPA 1925 – Manifested and proved by some writing + signed

Question 11

Methods of Disposition of an Existing Trust

Answer 11

Set out in Timpson’s Executors v Yerbuy, 4 methods:

• Direct Assignment
• Contract for Valuable Consideration to Assign Equitable Interest
• Direction for Trustees to Hold Property on Trust for another Beneficiary
• Declaration of Sub Trust

Question 12

Direct Assignment Formalities

Answer 12

S53(1)(c)LPA 1925: In writing and signed

Question 13

Contract for Valuable Consideration to Assign Equitable Interest Formalities

Answer 13

If enforceable by specific performance then a constructive trust arises in favour of the intended transferee

Question 14

Direction for Trustees to Hold Property on Trust for another Beneficiary Formalities

Answer 14

If legal Title has moved then need to comply with S53(1)(c)LPA 1925: In writing and signed

Question 15

Declaration of Sub Trust Formalities

Answer 15

Some debate, but based on precedent seems that this is considered a new trust so it does not need to comply with S53(1)(c)LPA 1925

Question 16

Constitution Definition

Answer 16

When a trust is constituted it means that the legal title has been vested in a trustee

Question 17

Methods of transferring Legal Title of Land

Answer 17

S52(1)LPA 1925 = Need a Deed
S1 LP(MP)A 1989 = Formalities for a Deed
SS4/27 LRA 2002 = Need to be Registered

Question 18

Methods of transferring Legal Title of Chattels

Answer 18

Deed OR Intention + Delivery

Question 19

Methods of transferring Legal Title of Shares

Answer 19

Stock Transfer Act 1963:

• Fills out + signs transfer form
• Form and share certificates sent to registrar
• Registration of transferee as the new legal title shareholder

Question 20

Methods of transferring Legal Title of Choses in Action

Answer 20

S136 LPA 1925 – Notice in writing given to the debtor/other party

Question 21

Methods of transferring Legal Title of Money

Answer 21

• Cash = Chattel

- Bank Account = Choses in Action

Question 22

Constitution Rule set out in Milroy v Lord

Answer 22

Equity will not perfect and imperfect gift. 3 methods to confer benefit of property to another:

• Outright Gift
• Transfer on Trust
• Self-Declaration of Trust

Question 23

Exceptions to the rule set out in Milroy v Lord

Answer 23

• Re Rose
• Fortuitous Vesting in Intended Trustee
• Deathbed Gift

Question 24

Exception in Re Rose

Answer 24

Where a settlor has done all in their power to transfer Equitable interest, equity will allow it.
Expanded in Mascall v Mascall, and Pennington v Waine “unconscionable”

Question 25

Deathbed Gift

Answer 25

3 criteria set out in Cain v Moon:

• Made in contemplation of Death
• Conditional on Death
• Delivery of Property