Formalities notes

s53(1)(c) disposition of a subsisting equitable interest must be made in writing. Provision was designed to i) prevent hidden oral transactions in equitable interests in fraud of those entitled and ii) to enable trustees to know where the equitable interests behind their trusts lie at any time. Equitable interests becuase theres no paper title or physical possession. Applies to equitable interests in realty and personalty. 

Grey- concerned what was a botched stamp duty avoidance scheme. Wanted to record the disposition by oral means, rather than make that the disposition. Disposition should have its ordinary meaning. Created a disposition. Declaration of trust over a subsisting equitable interest creates a subtrust so as to carve a subsidiary equitable interest out of the original property right. 

Oughtred- sale of an equitable reversionary interest. Oral agreement was a specifically enforceable contract. 

Vandervell- propostion of law that emerges is from the case is that where an absolute beneficial owner directs his bare trustee to transfer legal title to another with the express intention that his beneficial entitlement shall be extinguished upon the transfer and the trustee complies, the transferre takes the property as a unified legal and beneficial interest without it having been necessary for the beneficial owner to comply with s53(1)(c) in order to extinguish equitable rights.

b) the revenue law argument- the majority considered that the vesting of rights in a trustee company raised an inference that the fiduciary entity was intended to take as trustee, which inference stood in the absense of any coherent evidence rebutting it. Could infer when the primary evidence ran out. 

Re Vandervell's Trusts No.2- CoA denied the executors claim for two reasons 1) because new trusts over shares had been declared by the time they came to be registered in VT's name, so as to displace V's resulting interest and 2) because even if this were not so, V would, by the time his executors had issued their writ, have become estopped or otherwise equitably prevented from asserting his interest. 

New trusts- estoppel by encouragement was raised by the majority. This is weird as there was no substantial detriment, there was no evidence that the childrens settlement had changed its position in at all in the face of V's encouragement. Only V had detrimental reliance, by assuming he had adequately provided for his children and cutting them out the will. 

Keeping it in perspective- Vandervell 2 is likely to be confined to the particular facts. Probably wouldnt have survived going to the HoL. 

Understanding Vandervell in the concept of overreaching means that a trustee, in due exercise of his powers, transferred legal title to a trust asset, there by overreaching the equitable interest in the land. 

Vandervell- the revenues arguments- 1) vandervell remained beneficial owner of the shares at the time the dividend was declared so that the dividend was payable to him and consequently formed part of his taxable income. As Vandervell retained an interest in the shares, his interest in the option to repurchase them, he had to pay the tax. 

Generally trustees overreach an interest when they have the right as against their beneficaries to make the disposititon in question- the power to dispose of a trust asset without thereby committing to a breach of trust. The purchaser will acquire title to the asset free of the beneficaries rights- though they might sue their trustees, the beneficiaries simply have insufficient title to sue the purchaser. Maybe conferred expressly, or may be implied. 

Overreaching transfers in Vandervell- it is clear that an overreaching conveyance by trustees does not amount to a disposition in s53(1)(c). Such a conveyance is disposition of a legal title, free of an equitable interest. 

When V instructed the bank to execute a transfer of the shares, that instruction was outside the scope of s53. When legal ownership of the shares passed from the bank to the RC, that transfer overreached V's equitable interest in the shares and was also outside the scope of S53. The transfer deprived him of his equitable ownership in the shares. 

Wilberforce was correct to say that 'the case should be regarded as one in which the appellant himself, has with the intention to make a gift, put the college in a position to become the legal owner of the shares, which the college in fact became.' And that 'no separate transfer therefore of the equitable interest ever came to or needed to be made and there is no room for the operation of the subsection.' 

No aspect of these transactions amounted to the disposition of a subsisting equitable interest within s53.