constitution of trusts and gifts

Question 1

how do you set up a trust?

Answer 1

settlor transfers some property to the trustees and at the same time declares that the trust property is to be held by the trustees for the beneficiaries

Question 2

what are the three elements of a valid express private express trust?

Answer 2

• did the settlor have capacity - sane adult
• is the trust adequately defined with the three certainties
• is the trust appropriately assembled

Question 3

what are the two major methods of setting up a trust?

Answer 3

• if the settlor is happy for themselves to be the trustee they just declare themselves as the trustee of trust property and follow formalities rules for declaration
• or transfer trustees and declare trustee = follow formalities for declaration and follow constitution rules for transfer

Question 4

what is constitution?

Answer 4

common law rules about the transfer of property, must be fulfilled or it is void

Question 5

what are formalities?

Answer 5

statutory rules about some equity property, fulfil or the effects may vary

Question 6

what are implied trusts?

Answer 6

• trusts read in by the courts broadly to prevent injustice

Question 7

what are the three types of implied trusts ?

Answer 7

• resulting trusts
• constructive trusts
• statutory trusts

Question 8

how must land be transferred according to s52 LPA? - land transfer rules

Answer 8

by deed

Question 9

what can go wrong when transferring land? - land transfer rules

Answer 9

a deed isn’t used at all - Richards v Dellbridge [1874]]
disposition or interest is not registered - City of London BS v Flegg [1988]
contract does not fulfil s2 LP(MP) so will be void

Question 10

what are the rules on registration? - land transfer rules

Answer 10

must be registered as a registrable disposition [s27 LRA 2002] or a notice/restriction unless it is an overriding interest Sch 3 LRA 2002

Question 11

what are chattel transfer rules?

Answer 11

deliver the chattel with intention to give it
this includes constructive or indirect delivery - Thomas v Times Books [1968]
was enough done for delivery and did you intend a gift|?

Question 12

what are the share transfer rules?

Answer 12

process set out by stock transfer act 1963/companies actg 2006:
1. old owner executes transfer form
2. ensure transfer form gets to the company
3. company registers new owner

Question 13

what can go wrong in share transfer?

Answer 13

didn’t execute share transfer at all - Milroy v Lord [1862]
wrong person executed share transfer form - Zeital v Kaye [2010]
kept transfer form - Curtis v Pulbrook [2011]
didn’t get needed consents - re Fry

Question 14

what did the Wills Act 1837 do?

Answer 14

imposed a strict code about how you do things about your inheritance after death

Question 15

what is a will??

Answer 15

a person’s direction re-property after their death

Question 16

what are the requirements for a will?

Answer 16

1. will must be fully in writing
2. must be signed and witnessed
3. by independent witnesses
   the alternative is an intestacy

Question 17

what does s53(1)(b) LPA state about declarations of trust?

Answer 17

‘a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will’
- so some written evidence of the declaration of trust, if not the declaration is unenforceable

Question 18

what does trust creation usually involve?

Answer 18

checking declaration rules and disposition comes later

Question 19

what counts as diposition?

Answer 19

the moving around of the equitable title between beneficiaries

Question 20

what is dissolution and is it held to be a disposition?

Answer 20

dissolution = end of trust’s life
does not involve movement of equitable ownership so is held not to be a disposition

Question 21

what are two major exceptions to s53 LPA

Answer 21

s53(2) - implied trusts - resulting trusts and constructive trusts

Question 22

what is the common law exception to the formalities and constitution rules? - the rule in Strong v Bird [1874]

Answer 22

• there must be immediate intention of X to give property to Z
• this intention must continue until the death of X
• Z is made an executor or administrator

this rule was applied to trusts in Re Ralli [1964]

Question 23

what happened in Strong v Bird [1874]?

Answer 23

B borrowed £1100 from Stepmom
she made him the executor of her will
he was trying to repay and she wouldn’t let him
she died and he was her executor
other kin said isnt it time you paid off the rest of the debt
court said no, him being made the executor has effect of forgiving the debt

Question 24

what are the equity exceptions to the formalities and constitution rules?

Answer 24

King v Chiltern Dog Rescue [2015]:
1. gift made in contemplation of impending death
2. conditional on death
3. sufficient delivery of gift

Question 25

what is the constitution and forms technique?

Answer 25

1. which constitution and formalities rules apply
2. have these rules been complied with
3. if not, do they fall within one of the exceptions?