Constitution of Trusts

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  • Created by: Edward
  • Created on: 09-02-17 21:47
Jones v Lock (1865)
If the trust is not properly constituted, equity cannot usually offer assistance because “equity will not assist a volunteer” and “equity will not perfect an imperfect gift”
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Milroy v Lord (1862)
Constitution can occur by effective self-declaration of trust or an effective transfer of property to trustees
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s 53(1)(b) LPA 1925
General rule=declaration can be oral without need for additional formalities- exception re land, trust must be in writing, signed by settlor but not agent
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Jones v Lock (1865)
o An ineffective gift cannot generally be construed as declaration of trust as the settlor has shown intention to give property away absolutely and has evinced no intention to retain legal estate on trust for intended donee
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Shah v Shah (2010)
Exception to above=in context of single transaction involving transfer of shares; CA: both intentions might coalesce-here, an accompanying letter made clear that the donor was holding on trust until gift was perfected
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s 52 LPA 1925
Re land: requires deed of conveyance to transfer legal title to land
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s 53(1)(c) LPA 1925
Re existing equitable interests: assignment must be in writing and signed by assignor or agent
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Richards v Delbridge (1874)
Here, Mr D purported to transfer title to lease-wrote on back of lease ‘this deed and all thereto belonging I give to EBR from this time forth with all the stock in trade’- gift failed as there was no deed specifically created to effect the transfer-
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Re Rose (1952)
Every effort rule
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Pennington v Waine (2002), promoted by Arden LJ
When it would be unconscionable for donor to change his mind
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Strong v Bird (1874)
Fortuitous vesting
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Zeital v Kaye (2010)
Rimer LJ: once the donor has done all in his own power to transfer shares, he will be regarded as holding legal title to them upon trust for done, who will thereupon become beneficial owner
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Re Rose (1952)
Here, donor executed share transfer form – handed it with share certificate to done-although transfer would not be complete until shares reg’d, the gift was upheld-because, once he had arranged delivery/reg’n by agent done, the donor had no more to d
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Mascall v Mascall (1984)
Father delivered executed land transfer form and land certificate to son-argument before transfer reg’d-father sought withdraw-held: every effort rule applied-now too late to withdraw from process
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Re Fry (1946)
Here, somewhat harsh case-donor still had something to do himself-thus not made every effort-he had not obtained Treasury consent to a transfer of shares
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Pennington v Waine (2002)
Mr P meeting with donor A-A said wanted to transfer immediately 400 shares in company to nephew H-A signed appropriate share transfer form – gave it to Mr P-Mr P wrote to H stating Mr P had been instructed to transfer shares to H and inviting him to
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Pennington v Waine (2002)
Unless some arrangement has been made for delivery of the transfer form, the donor truly cannot be said to have taken every step that he has to take
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Pennington v Waine (2002)
CA: unconscionable for donor to recall the gift – followed that it would be equally unconscionable for her personal rep to refuse to hand over share transfer form to donee
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Jordan v Roberts (2009)
HC: an otherwise imperfect gift of shares could be treated as having been completely constituted if it would be inequitable for the donor to resile from the transaction
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T Choithram International v Pagarani (2001)
Here, settlor executed deed of trust-nominated himself and 9 others as trustees-trust upheld-because settlor had enough to declare himself trustee-irrelevant that he intended to be one of 9 trustees-PC: it would now be unconscionable for settlor to r
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Sen v Headley (1991)
Any type of property can seemingly be subject of DMC: cheques, chattels, shares, bonds, insurance policies, land etc.
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Re Craven (1937)
Death must be imminent – “death within the near future”
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King v Chiltern Dog Rescue (2015)
Reinforced here, where the frailty and age of donor and awareness that she would die sometime were not sufficient to satisfy this requirement
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Wilkes v Allington (1931)
The gift will still be perfected if deceased dies from different cause than anticipated- here, donor dying of cancer and made valid DMC although eventually died of pneumonia
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King v Chiltern Dog Rescue (2015)
• Jackson LJ: the gift will lapse automatically if donor does not die soon enough from anticipated threat
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Gardner v Parker (1818)
Contemplation of death can be inferred from circumstances-here, connection between gift and contemplation of death was inferred from fact that donor was terminally ill when he made the gift and died shortly after making it
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King v Chiltern Dog Rescue (2015)
CA: no valid DMC; donor had no reason to anticipate death in near future from a known cause and had ample opportunity to take advice and make a will
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Cain v Moon (1896)
The gift must be made in circumstances that show that property is to revert back to donor if he recovers
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Sen v Headley (1991)
The gift becomes absolute only on donor’s death and is revocable until that event occurs and ineffective if it does not
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Tate v Hilbert (1793)
There can be no DMC if the donor intends to make an immediate gift-here, held: deceased had attempted to make an immediate and unconditional gift to his nieces and, hence, there could be no valid DMC
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Gardner v Parker (1818)
General rule=if the gift is made in expectation of death, in absence of contrary evidence, it will be regarded as being conditional on the death of the donor
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King v Chiltern Dog Rescue (2015)
However, here “this will be yours when I go” = more consistent with a statement of testamentary intent and did not indicate a gift which was conditional upon donor’s death within a limited period of time
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Hardy v Baker (1738)
• If delivery occurs after donor’s death, there will be no valid DMC
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Cant v Gregory (1894)
If the done refuses to accept delivery there can be no DMC
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Woodward v Woodward (1995)
Here, passing over of keys to car sufficed to pass dominion over the vehicle
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Re Weston (1902)
Passing over of savings book constituted passing dominion of savings themselves
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King v Chiltern Dog Rescue (2015)
Handing over of title deeds to a house sufficed
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Re Stewart (1908)
Rule = where there is a purported gift to a done, and the done later happens to obtain legal title to the property in the capacity of executor under donor’s will, the gift will then be perfected
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Strong v Bird (1874)
Here, stepmom loan £1,100 to stepson-lived at his house-took off £100 off rent each month-stepmom released debt after two months-held: 1. Intention to forgive debt/make the debt must continue until death; 2. There must be the intention to make immedi
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Re Ralli’s Will Trusts (1964)
Settlor entered covenant to transfer prop anticipated from mother’s death under father’s will-predeceased mother-on mother’s death trust prop reverted back to father’s estate-became vested in sole executor under father’s will-this person was also a t
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Cobbe v Yeoman’s Row Management Ltd (2008)
Characteristics of estoppel: representation (express/implied assurance which must be clear and certain
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Sledmore v Dalby (1996)
Claimant can never have more than that which was assured and the court is expected to award the “minimum equity” nec to achieve justice
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Jennings v Rice (2003)
Aldous J: task of the court is to do justice; most essential requirement is: there must be proportionality between expectation and detriment
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Gillett v Holt (2001)
The court will do what is fair in relation to both parties
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Bradbury v Taylor (2012)
Here, Mr T promised couple his house in his will-couple gave up own home and moved in with Mr T, Mr T left house to charity in will-couple argued: estoppel, property was held by executor on trust for them; trust upheld: there was rep’n; acted upon; r
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Bradbury v Taylor (2012)
Lloyd LJ: “such detriment as they suffered is to be balanced against the adv they gained and should not be found to be insubstantial” – couple had to pay inheritance tax which greatly reduced monetary value of the award
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Dillwyn v Llewelyn (1862)
Here, father assured son certain land now belonged to son-did not transfer land to son-son built house on that land-later validity of gift was challenged-son able to invoke estoppel and compel gift to be perfected
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Jennings v Rice (2002)
Here, represented= claimant would be left valuable property in representor’s will-held: extent of his detriment warranted instead a cash payment of £200,000
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Other cards in this set

Card 2

Front

Constitution can occur by effective self-declaration of trust or an effective transfer of property to trustees

Back

Milroy v Lord (1862)

Card 3

Front

General rule=declaration can be oral without need for additional formalities- exception re land, trust must be in writing, signed by settlor but not agent

Back

Preview of the back of card 3

Card 4

Front

o An ineffective gift cannot generally be construed as declaration of trust as the settlor has shown intention to give property away absolutely and has evinced no intention to retain legal estate on trust for intended donee

Back

Preview of the back of card 4

Card 5

Front

Exception to above=in context of single transaction involving transfer of shares; CA: both intentions might coalesce-here, an accompanying letter made clear that the donor was holding on trust until gift was perfected

Back

Preview of the back of card 5
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