Equity and Trusts, 4th Edition

here Front Cover Half Title Page Title Page Copyright Page Brief contents Contents Preface Publisher’s Acknowledgements Table of cases Table of statutes Part I Introduction to equity and trusts 1 Introduction to equity Learning objectives Setting the scene: Equity and role of unconscionability Introduction The common law The origins and development of equity Equity and the role of conscience Unconscionability, fairness and the role of context The Judicature Acts 1873 and 1875 and the relationship between law and equity Fusion fallacy Equitable maxims Nature of proprietary rights in law and in equity Equity and social reform Conclusion Moot points Further reading 2 The trust concept Learning objectives Setting the scene: Hambro and Others v The Duke of Marlborough and Others [1994] 3 WLR 341 Introduction Definition The key features of the trust Trust as a product of fragmentation of ownership Historical foundations of the trust Trusts and law reform Classification of trusts The operation of section 33(1) Trustee Act 1925: protective trusts The contemporary significance of trusts Some key players and concepts in the trust relationship Conclusion Moot points Further reading 3 The trust distinguished from other legal concepts Learning objectives Setting the scene: Re Mills [1930] 1 Ch. 654 Introduction Contract Agency Bailment Interests under wills and administration Debts Powers: general observations Different types of power of appointment Exercising a power of appointment Excessive or fraudulent exercise of a power Consequences of not exercising a power of appointment Conclusion Case study Moot points Further reading Part II Creating the trust relationship 4 The three certainties Learning objectives Setting the scene: McPhail v Doulton [1971] AC 424 Introduction The effect of uncertainty The rationale for certainty Certainty of intention Certainty of subject matter Certainty of objects: general observations The constituent elements of certainty of objects The test of certainty of objects for a fixed trust The test of certainty of objects for a discretionary trust Conclusion Case study Moot points Further reading 5 Formalities Learning objectives Setting the scene: The Vandervell Saga 1958–1965 Introduction Testamentary trusts Inter vivos trusts Declarations of trust Dispositions of equitable interests Conclusion Case studies Moot points Further reading 6 Constitution of trusts Learning objectives Setting the scene: Pennington v Waine [2002] 1 WLR 2075 Introduction Completely constituted and incompletely constituted trusts The Milroy v Lord principles of conferring a benefit on a donee Declaration of trust Transfer to trustees Equity will not strive officiously to defeat a gift Enforcing an incompletely constituted trust Exceptions to the rule that equity will not assist a volunteer Proprietary estoppel Conclusion Case studies Moot points Further reading 7 Secret trusts and mutual wills Learning objectives Setting the scene: Re Boyes (1884) 26 Ch D 531 Introduction Succession Definition of a secret trust The theoretical justification of secret trusts Requirements for a fully secret trust Requirements for a half-secret trust Predecease of the secret beneficiary Predecease of the secret trustee Can a secret trustee derive a benefit from the secret trust? How are secret trusts classified? Mutual wills Conclusion Case study Moot points Further reading 8 The beneficiary principle Learning objectives Setting the scene: Re Astor's Settlement Trusts [1952] Ch 534 Introduction Non-charitable purpose trusts and charitable trusts Is the trust a purpose trust? The beneficiary principle stated Rationale behind the principle The Re Denley principle: a situation outside the beneficiary principle The anomalous cases The construction of gifts to unincorporated associations Reform Conclusion Case study Moot points Further reading 9 Illegality and public policy Learning objectives Setting the scene: Blathwayt v Baron Cawley [1976] AC 397 Introduction Freedom of disposition and public policy Trusts contrary to public policy Illegality Trusts which contravene the perpetuity rules Trusts to safeguard property from creditors Trusts defeating the rights of the family and dependants Trusts defeating the rights of a spouse The Law Commission's consultation paper Conclusion Case study Moot points Further reading Part III Trusts implied by law 10 Resulting trusts, part I: Nature of resulting trusts Learning objectives Setting the scene: When does a resulting trust arise? Introduction Theories explaining the imposition of a resulting trust The'beneficial vacuum' theory Resulting trusts and a restitutionary justification Resulting trusts and the role of intentions Automatic and presumed resulting trusts Westdeutsche: the prevailing view Conclusion Moot points Further reading 11 Resulting trusts, part II: Imposing resulting trusts Learning objectives Setting the scene: Problems requiring a resulting trust solution Introduction Failure of the trust Resulting trusts and Quistclose trusts Unexhausted funds Voluntary conveyance in the name of another Purchase in the name of another Rebutting the presumption of a resulting trust Rebutting the presumptions and evidential matters Resulting trusts and the family home Conclusion Case studies Moot points Further reading 12 Constructive trusts, part I: Nature of constructive trusts Learning objectives Setting the scene: Why do we impose constructive trusts? Introduction When will a constructive trust be imposed? Institutional and remedial constructive trusts An institutional constructive trust A remedial constructive trust Does English law recognise a remedial constructive trust? Consequences of the imposition of a constructive trust Conclusion Moot points Further reading 13 Constructive trusts, part II: Imposing constructive trusts Learning objectives Setting the scene: Problems requiring a constructive trust solution Introduction Acquisition of property as a result of unlawful conduct Unauthorised profits gained by a fiduciary Constructive trusts and the family home Miscellaneous situations giving rise to a constructive trust Conclusion Case studies Moot points Further reading 14 Constructive trusts, part III: Imposing constructive trusts –intermeddling with trust property Learning objectives Setting the scene: Royal Brunei v Tan [1995] 2 AC 378 Introduction Nature of liability for knowing assistance Requisites for liability for knowing assistance Receipt of trust property in breach of trust Significance of knowing receipt liability and requisites for liability Conclusion Case study Moot points Further reading Part IV The administration of trusts 15 Introduction to trusteeship appointment, removal and retirement Learning objectives Setting the scene: Klug v Klug [1918] 2 Ch. 67 Introduction Capacity and numbers Appointment of initial trustees Appointment of new trustees The retirement of trustees Removal of a trustee Special types of trustees Vesting of the trust property in trustees Conducting the office of trusteeship Control of trustees' discretions Do trustees need to give reasons? Conclusion Case study Moot points Further reading 16 Investment of trust funds Learning objectives Setting the scene: Nestlé v National Westminster Bank plc [1993] 1 WLR 1260 Introduction The duty of investment and the power of investment The objectives of trust investment Historical note and contemporary trends in trustee investment Common law and statutory duties when investing Express powers of investment Statutory power of investment Purchase of land as an investment Mortgages of land as an investment Charitable trusts and social investments Enlargement of investment powers: the return of the Re Kolb principle The duty to act fairly among the beneficiaries Conclusion Case studies Moot points Further reading 17 Fiduciary nature of trusteeship Learning objectives Setting the scene: Keech v Sandford (1726) Sel. Cas. Ch. 61 Introduction Defining fiduciary relationships The purchase of trust property Trustee remuneration Incidental profits Remedies for breach of fiduciary duty Conclusion Case study Moot points Further reading 18 Powers of trustees Learning objectives Setting the scene: Re Pauling's Settlement Trusts [1964] Ch 303 Introduction The power to delegate The power of maintenance The power of advancement Miscellaneous powers of trustees Conclusion Case studies Moot points Further reading 19 Variation of trusts Learning objectives Setting the scene: Re Weston's Settlements [1969] 1 Ch. 223 Introduction The rule in Saunders v Vautier The court's inherent jurisdiction to order variation Statutory provisions The Variation of Trusts Act 1958 Conclusion Moot points Further reading Part V Breach of trust and remedies 20 Breach of trust and personal remedies Learning objectives Setting the scene: Target Holdings v Redferns [1996] AC 421 Introduction The personal liability of the trustee Liability for co-trustees Joint liability, contribution and indemnity Established principles when assessing liability Defences in a personal claim Limitation of actions Conclusion Case study Moot points Further reading 21 Tracing and a proprietary claim Learning objectives Setting the scene: Re Diplock [1948] Ch 465 Introduction Proprietary claims and tracing Tracing and proprietary claims at common law Tracing and proprietary claims in equity Conclusion Case study Moot points Further reading Part VI Charities and charitable trusts 22 Charities and charitable trusts Learning objectives Setting the scene: IRC v McMullen [1981] AC 1 House of Lords Introduction A historical note The structure of charity The Charities Act 2006 and the Charities Act 2011 Differences between charitable trusts and private trusts Regulation and supervision of charities Requirements for a charitable trust Definition of charity Charitable purposes under the Charities Act 2011 Recreational charities Public benefit Exclusively charitable Trusts with political purposes Conclusion Case studies Moot points Further reading 23 The cy-près doctrine Learning objectives Setting the scene: Re Rymer [1895] 1 Ch 19 and Re Slevin [1891] 2 Ch 236 Introduction The court's inherent jurisdiction to apply cy-près A general charitable intent Initial failure Subsequent failure The Charities Act 1993 The Charities Act 2011 Charity donations and unidentifiable donors Cy-près schemes Conclusion Case study Moot points Further reading Index Back Cover