Unlocking Trusts
Contents
Preface
Acknowledgements
List Of Figures
Table Of Cases
Table Of Statutes And Other Instruments
Chapter 1 - Historical outlines of equity 1.1
1.1.1 Introduction to equity
1.1.2 Terminology
1.1.3 Petitions to the Lord Chancellor
1.1.4 Procedure in Chancery
1.1.5 The Trust – a product of Equity
1.1.6 The Chancellor’s intervention
1.1.7 Duality of ownership
1.1.8 Statute of Uses 1535
1.1.9 Use upon a use
1.1.10 Struggle over injunctions
1.2 Contributions of Equity
1.2.1 Court of Appeal in Chancery
1.3 Nineteenth-century Reforms
1.4 Maxims of Equity
Chapter 2 - Introduction to trusts
2.1 Introduction
2.2 Trust Concept
2.2.1 Underhill’s definition
2.2.2 Recognition of Trusts Act 1987
2.2.3 Lord Browne-Wilkinson’s essential characteristics
2.3 Characteristics of a trust
2.3.1 Trusts property
2.3.2 Separation of Legal and Equitable Interests
2.3.3 Sub-Trusts
2.3.4 Obligatory
2.3.5 `Inter Vivos' or on Death
2.3.6 The Settlor's Position
2.3.7 The Trustees' Position
2.3.8 The Beneficiary's Position
2.3.9 Equitable Proprietary Interests 2.4 Classification of Trusts
2.4.1 Private/Public Trusts
2.4.2 Fixed/Discretionary Trusts
2.4.3 Resulting Trusts
2.4.4 Constructive Trusts
2.4.5 Statutory Trusts
2.5 Reasons for the creation of express trusts
Chapter 3 - The three certainties test
3.1 Introduction
3.2 Certainty of intention
3.2.1 Intention - a question of fact and degree
3.2.2 Intention to benefit distinct from intention to create a trust
3.2.3 Precatory words
3.2.4 Effect of uncertainty of intention 3.3 Certainty of subject matter
3.3.1 Certainty of trust property
3.3.2 Beneficial interests
3.3.3 Uncertainty of subject matter
3.4 Certainty of objects
3.4.1 Fixed trusts
3.4.2 Discretionary trusts
3.4.3 Powers of appointment
3.4.4 Analysis of the ‘any given postulant’ test
3.4.5 Distinct approaches to the given postulant test
Chapter 4 - Constitution of an express trust
4.1 Introduction
4.2 The rule in Milroy v Lord
4.2.1 Transfer and Declaration mode
4.2.2 Transfer of shares in a private company
4.3 Self-Declaration of trust
4.4 No self-declaration following imperfect transfer
4.5 The settlor may expressly adopt both modes of creation
4.6 Multiple trustees including the settlor
4.7 No trust of future property
4.8 Trusts of choses in action
4.8.1 Fletcher restricted to debts enforceable at law
4.9 Consequences of a perfect trust
4.10 Incompletely constituted trusts
4.10.1 Agreements enforceable by non-volunteers
4.10.2 Covenants to create trusts before the Contracts (Rights of Third Parties) Act 1999
4.10.3 Effect of the Contracts (Rights of Third Parties) Act 1999
Chapter 5 - Exceptions to the rule that equity will not assist a volunteer
5.1 Introduction
5.2 The rule in Strong v Bird
5.2.1 The nature of donor’s intention
5.3 Donatio Mortis Causa
5.3.1 Contemplation of death
5.3.2 Conditional on death
5.3.3 Parting with dominion
5.3.4 The types of property
5.4 Proprietary Estoppel
5.4.1 Five probanda
5.4.2 Unconscionability
5.4.3 Nature of the interest acquired
Chapter 6 - Formalities for the Creation of Express Trusts
6.1 Introduction
6.2 Declaration of a trust of land
6.2.1 ‘Land or an interest in land’
6.2.2 ‘Declarations of trusts’
6.2.3 ‘Manifested and proved by some writing’
6.2.4 ‘Writing’
6.2.5 Signature
6.3 Exclusion
6.4 Dispositions under S53(1)(c) of the Law of Property Act 1925
6.4.1 Direction to trustees
6.4.2 Transfer of both the legal and equitable titles to a third party
6.4.3 S 53(2) of the Law of Property Act 1925
6.4.4 Overlap between SS53(1)(b) and (c) of the Law of Property Act 1925
6.4.5 Estoppel
6.4.6 Self-declaration of trust of part of an equitable interest
6.4.7 Disclaimers
6.4.8 Pension scheme nominations
Chapter 7 - Discretionary Trusts
7.1 Introduction
7.2 Exhaustive/non-exhaustive discretionary trusts
7.3 Period of accumulation
7.4 Reasons for creating discretionary trusts
7.4.1 Flexibility
7.4.2 Protection of Objects from Creditors
7.5 Administrative Discretion
7.6 Mere Powers and Trust Powers
7.7 Trust Powers
7.8 Duties imposed on fiduciaries
7.9 Status of objects under discretionary trusts
7.9.1 Individual Interest
7.9.2 Group Interest
7.10 Protective trusts under s 33 of the Trustee Act 1925
7.10.1 Determining events (forfeiture)
7.10.2 Other examples of forfeiting events
Chapter 8 – Resulting Trusts
8.1 Introduction
8.2 Automatic and presumed resulting trusts
8.3 Automatic resulting trusts
8.3.1 Quistclose analysis
8.3.2 Surplus of trust funds
8.3.3 Dissolution of unincorporated associations:
8.4 Presumed resulting trusts:
8.4.1 Purchase in the name of another
8.4.2 Voluntary transfer in the name of another
8.4.3 Presumption of Advancement
8.4.4 Rebuttal of the presumptions
8.4.5 Intended unlawful activity and rebuttal evidence
Chapter 9 – Constructive Trusts
9.1 Introduction
9.2 Constructive trusts / Duty to account
9.3 Institutional and remedial constructive trusts
9.4 Recognised categories of Constructive Trusts
9.4.1 Trustee or fiduciary making unauthorised profit
9.4.2 Fiduciary relationship
9.4.3 Unauthorised remuneration or financial benefit received by trustee or fiduciary
9.4.4 Bribes or secret profits received by fiduciaries
9.4.5 Trustee/director’s remuneration
9.4.6 Occasions when a trustee may receive remuneration
9.4.7 Purchases of trust property (rule against self dealing) 9.5 Contracts for the sale of land
9.6 Equity will not allow a Statute to be used as an engine for fraud 9.7 Proprietary rights in the family home
9.7.1 Legal title in the joint names of the parties
9.7.2 Legal title in the name of the party only
9.7.3 Resulting Trust
9.7.4 Common intention
9.7.5 Indirect contributions
9.7.6 The principle in Pettitt and Gissing
9.7.7 Scope of the Rosset principles
9.7.8 The ‘Cooke’ approach
9.7.9 Section 37 of the Matrimonial Proceedings and Property Act 1970
9.7.10 Date and method of valuation
9.7.11 Order of Sale
9.8 Strangers as constructive trustees
9.8.1 Introduction
9.8.2 Trustees de son tort
9.8.3 Knowingly receiving or dealing with trust property for his own use
9.8.4 Alternative rationale of liability
9.8.5 Dishonest Assistance or Accessory Liability
9.8.6 Royal Brunei v Tan analysis
9.8.7 Dishonesty
Chapter 10 - Secret trusts and mutual wills
10.1 Introduction
10.2 Two types of secret trusts
10.3 Basis for enforcing secret trusts
10.4 Requirements for the creation of fully secret trusts
10.4.1 No agreement for transferee to hold as trustee
10.4.2 Terms of trust not communicated
10.4.3 Two or more legatees
10.5 Requirements for the creation of half secret trusts 10.6 Unresolved issues connected with secret trusts
10.6.1 Standard of proof
10.6.2 Death of a secret beneficiary
10.6.3 Death of a secret trustee
10.6.4 Classification of secret trusts
10.7 Mutual Wills
10.7.1 The agreement
10.7.2 The effect of the agreement
10.7.3 The scope of the agreement
Chapter 11 - Private purpose trusts
11.1 Introduction
11.2 Reasons for failure of a private purpose trust
11.2.1 Lack of beneficiaries
11.2.2 Uncertainty
11.2.3 Perpetuity rule
11.3 Exceptions to the `astor' principle
11.3.1 Trusts for the maintenance of animals
11.3.2 Monument cases
11.3.3 Saying of masses
11.4 The denley approach
11.5 Gifts to unincorporated associations
Chapter 12 – Charitable Trusts
12.1 Certainty of objects
12.2 Perpetuity
12.3 Cy-Pres doctrine
12.4 Fiscal advantages
12.5 Charitable Purposes
12.6 Public element
12.6.1 Public Benefit
12.6.2 Poverty exception
12.6.3 Classification of Charitable Purposes 12.7 Charitable activities outside the united kingdom
12.8 Cy-pres doctrine
12.8.1 Impossibility
12.8.2 General charitable intention
12.8.3 Section 14 of the charities act 1993
12.9 Charity commissioners
12.10 The attorney general
12.11 Litigation by charities
12.12 Reform of charities
Chapter 13 - Appointment, retirement and removal of trustees
13.1 Appointment
13.1.1 Creation of a new trust
13.1.2 Continuance of the trust
13.2 Retirement
13.2.1 Retirement procedure under s39
13.2.2 Retirement under a court order
13.3 Removal
13.3.1 Court order
Chapter 14 – Duties and Powers of Trustees
14.1 Duties of Trustees
14.1.1 The duty and standard of care at common law
14.1.2 Duty and standard of care under the Trustee Act 2000 14.2 Duty to act Unanimously
14.3 Duty to act personally
14.3.1 Power to appoint nominees
14.3.2 Power to appoint custodians
14.3.3 Persons who may be appointed as nominees or custodians
14.3.4 Review of acts of agents, nominees and custodians
14.3.5 Liability for the acts of agents, nominees and custodians 14.4 Other Statutory Provisions permitting Delegation of Discretions
14.4.1 Delegation under the Trusts of Land and Appointment of Trustees Act 1996
14.5 Exclusion clauses
14.6 Duty to provide Accounts and Information
14.7 Duty to distribute to the correct beneficiaries 14.8 Duty not to make profits from the trust
14.9 Powers of Investment
14.9.1 Express power
14.9.2 Statutory power under the Trustee Act 2000
14.9.3 Enlargement of investment powers
14.10 The right of beneficiaries to occupy land
14.11 Powers of Maintenance and Advancement
14.11.1 Power of maintenance
14.11.2 Power of advancement
14.12 Power of trustees to give receipts
14.13 Power to partition land under a trust of land
Chapter 15 – Variation of Trusts
15.1 The rule in Saunders v Vautier
15.2 Inherent Jurisdiction of the Court
15.3 Section 57 of the Trustee Act 1925
15.4 Section 53 of the Trustee Act 1925
15.5 Section 64 of the Settled Land Act 1925
15.6 Sections 23 and 24 of the Matrimonial Causes Act 1973 15.7 Section 96 of the Mental Health Act 1983
15.8 Compromise (inherent jurisdiction)
15.9 The Variation of Trusts Act 1958
15.9.1 Section 1(1)(b) of the Act
15.9.2 Variation or Resettlement?
15.9.3 Settlor's intention
15.9.4 Benefit (proviso to s 1(1)
15.9.5 Effect of variation
Chapter 16 – Breach of Trust
16.1 Measure of Liability
16.1.1 Interest
16.2 Contribution and Indemnity Between Trustees
16.2.1 Fraudulent Benefit from breach of trust
16.2.2 Breach committed on advice of a solicitor – trustee
16.2.3 The rule in Chillingworth v Chambers [1896] 1 Ch. 385.
16.3 Defences to an action for Breach of Trust
16.3.1 Knowledge and Consent of the Beneficiaries
16.3.2 Impounding the Interest of a Beneficiary
16.3.3 Relief Under s 61 of the Trustee Act 1925
16.3.4 Limitation and Laches
16.4 Proprietary Remedies (Tracing or the Claim in rem )
16.4.1 Advantages of the Proprietary Remedy over Personal Remedies
16.4.2 Tracing at common law
16.4.3 Tracing in Equity
Index