Property Law - Mutual Wills and Secret Trusts Flashcards Preview

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Flashcards in Property Law - Mutual Wills and Secret Trusts Deck (192):
1

AG for Hong Kong v Reid general

Bribe to act contrary to C's interests

2

How does Re Cleaver explain MW?

Inconsistent dealings with property forces equity to intervene

3

What does intention as a requirement for ST require regard to?

Three certainties

4

Why can't the fraud theory explain HST?

B never keeps the property - it is always either an RT, C or successful HST

5

Moss v Cooper on method of acceptance

Words or silence

6

What judge in what case distinguished between subsequent and prior promises on JT property in FSTs?

LJ Fairwell in Re Stead

7

What power does B have under a MW?

Bare power

8

What judge in what case refused to enforce MW without compliance with LP(MP)A 1989 s.2?

David Donaldson QC in Healey v Brown

9

Healey v Brown general

No compliance with LP(MP)A 1989 s.2

10

LP(MP)A 1989 s.2

Requires signed writing for a contract of land

11

What case required 'Irrevocability of the mutual intentions' for firm agreement of MW?

Re Goodchild

12

What case gives the effect of non-compliance with HST requirements?

Re Keen

13

What is the 'fraud' theory of ST?

Statute is not an instrument of fraud

14

Why does Hackney not think HST should exist at all?

Unconscionability is dealt with through RT

15

Re Boyes gives what two categories for non-compliance with FSTs?

If B is ignorant of the trust or ignorant of the terms

16

What case suggested that if a MW fails, an ST may operate instead?

Healey v Brown

17

Two cases showing possible subject matter of a MW?

Re Hagger; Re Dale

18

Re Maddock

FST fails if secret T dies

19

Outline to 4, detail to 5th

Blackwell v Blackwell

20

Olins v Walters general

Saunders

21

Stephenson v Barclays Bank

B AND C can exercise Saunders

22

What is the doctrine of incorporation?

Will can refer to already existing written instrument, and it will be incorporated

23

Why does communication of a fully secret trust need to be before death of A?

Property moves automatically to B upon A's death so needs to have agreed prior to receipt

24

How can Re Gardner (No.2) be criticised?

C's right only arises when trust is constituted by B's receipt, which doesn't happen until A dies

25

Life interest and remainder man

Re Hagger

26

What judge in Re Gardner (No.2) suggested that in a HST, if secret B dies property would go to C's estate?

Romer J

27

Walgrave v Tebbs on method of acceptance

Express or implied

28

3 requirements for STs in Kasperbauer v Griffith

Intention, communication and acceptance

29

If B revokes his MW, will takes effect but D holds on trust for C

Re Heys

30

If the subject matter of a MW is unclear, what can the parties do?

Apply to court

31

Irish case on HST communication

Re Browne

32

Re Dale on subject matter of trust specifically

MW can apply to ANY property promised to pass on, and no need to receive property at all

33

Blackwell v Blackwell general

Outline to 4, detail to 5th

34

Polly Peck v Nadir general

interim injunction

35

Moss v Cooper general

Agents

36

No compliance with LP(MP)A 1989 s.2

Healey v Brown

37

Walgrave v Tebbs general

Instructions after death

38

Re Newey general

Mirroring

39

What case gives communication requirements of fully secret trusts?

Walgrave v Tebbs

40

Rickett on nature of MW trust

Remedial CT

41

Three possible ways to justify secret wills

Fraud, dehors the will and CT

42

What is the constitutional question about STs?

Is it valid to read in an exception to a statutory instrument?

43

What case gives the assumption that an individual does not relinquish the freedom to make testamentary dispositions?

Charles v Fraser

44

Liew on nature of MW

Qualified and absolute interest analysis, focusing either on advantage-based aim or loss-based aim

45

Obligation of MW when A dies

Thomas and Agnes v Carvel

46

Mirroring of wills unnecessary for MW

Re Newey

47

Birmingham v Renfrew judgment

CT when A dies, but only crystallises when B dies OR when B makes an improper disposition

48

Why is it suggested LP(MP)A 1989 s.2 would apply to MW?

MW is considered a 'contract'

49

What case suggested that if there is sufficient notice of MW revocation before A's death, doctrine may not even apply?

Lewis v Cotton

50

What academic suggested the outcome if B makes an improper disposition?

Liew

51

What did Mummery LJ in Re Walters say the MW doctrine was about?

Response to prospect of unconscionable conduct

52

FST fails if secret T dies

Re Maddock

53

What judge in what case said that mutual wills continue 'to be a source of contention for the families of those who have invoked' the doctrine?

Mummery LJ in Olins v Walters

54

What is the dehors the will theory?

Sts are outside the will so s.9 WA has no application

55

What is the basic starting point for a valid testamentary disposition?

S.9 Wills Act 1837

56

Why is a high degree of certainty required for MW?

B binding himself DESPITE possibility of change in circumstances

57

Refraining from making a will

Strickland v Aldridge

58

Why does the Re Stead rule exist?

To block C from profiting from B's fraud

59

Two cases on revocation of MW agreement

Re Heys; Lewis v Cotton

60

Why does the CT theory of Sts completely circumvent WA?

Not testamentary dispositions at all

61

Re Newey judgment

Mirroring of wills unnecessary for MW

62

Why is it an issue for ST justification that you can't declare an immediate trust of future property?

ST can bind after-acquired property

63

To C and D equally

Re Dale

64

'Takes absolutely'

Re Rees

65

Re Keen general

Sealed envelope

66

What is the general rule if communication of an FST isn't communicated to all?

Only person who is told is bound

67

Lewis v Cotton

If revocation attempted before A's death, maybe BoC, but if sufficient notice then MW may not even apply

68

Name at least two reasons why agreements might be made outside the will?

Wills are public documents, A unsure what he is going to do with the property or A unaware of s.9 Wills Act 1837

69

What case shows agents can be used to communicate a fully secret trust?

Moss v Cooper

70

What is the CT theory of ST?

Prevents particular form of unconscionable conduct in B acquiring property meant for another

71

Walgrave v Tebbs judgment

Communication needs to be before, during or after execution of will but BEFORE testator dies

72

In the Goods of Smart general

Probate doctrine of incorporation

73

Two cases on terms of HST conflicting with will

Re Rees and Re Keen

74

What review started in later 2015 with the suggestion of abolishing MW doctrine

Law Commission 2015

75

Re Stead general

JT

76

Re Rees general

'Takes absolutely'

77

What are both secret trusts and mutual wills loosely based on?

Agreement

78

Walgrave v Tebbs on content of communication for fully secret trust

Intention to create an ST

79

Polly Peck v Nadir judgment

For CT, C can virtually get an interim injunction as of right before trial

80

What case showed that the question of permissibility for use of property in B's lifetime is fact specific?

Re Walters

81

Name at least two reasons why CTs are difficult

Used as a miscellaneous category, disputes over categorisation and lack of a coherent theme

82

Re Colin Cooper general

£5000 then £5000

83

What case rejected Hackney's view on HSTs as being dealt with through unconscionability?

Blackwell v Blackwell

84

Moss v Cooper on reliance

Will unrevoked after B's promise justified CT

85

Blackwell v Blackwell on communication of HST

Needs to be before or at time of execution of the will

86

Blackwell v Blackwell on death of secret T

suggested a court would interfere to prevent an FST failing if a secret T dies

87

£5000 then £5000

Re Colin Cooper

88

Strickland v Aldridge judgment

Refraining from making a will can show A's reliance of B's acceptance

89

What is there no case on when considering death of secret beneficiary?

FST

90

What case required 'Clear and satisfactory evidence of a contract' for MW?

Re Walters

91

What case suggested a court would interfere to prevent an FST failing if a secret T dies?

Blackwell v Blackwell

92

Re Browne general

Irish case on HST communication

93

Re Walters general

'Clear and satisfactory evidence of a contract'

94

Olins v Walters judgment

C cannot exercise Saunders rights but can ask for a declaration that the agreement amounts to a MW

95

Re Gardon on HST communication

If only made to 1 T before execution, all are bound

96

'Irrevocability of the mutual intentions'

Re Goodchild

97

What happens, according to Re Stead, if property left on JT but communication made after will made/left unrevoked?

Bs share is severed in JT

98

What case showed C under MW cannot exercise Saunders rights?

Olins v Walters

99

Re Goodchild general'

'Irrevocability of the mutual intentions'

100

What category of ST can the fraud theory not explain?

HST

101

What case shows the BENEFICIAL consequences of a CT?

AG for Hong Kong v Reid

102

What suggests courts are not looking for a valid common law contract in MW?

Majority of cases do not comply with LP(MP)A 1989 s.2 but are enforced anyway

103

What case suggested a HST 'will not fail for want of a trustee'

Sonley v Clock Makers' Company

104

What case showed B AND C can exercise Saunders?

Stephenson v Barclays Bank

105

What happens if B is ignorant of the FST?

B takes property absolutely

106

In what case did Lieu suggest there would be no need for a proprietary or personal compensatory claim after improper disposition by B under MW?

If all B's property constituted the trust fund

107

Re Boyes judgment

Instructions only found after A's death so no ST, but RT

108

What case gives the effect of non-compliance with FST requirements?

Re Boyes

109

Why did Liew reject Healey v Brown on application of ST if MW fails?

B's promise relates to a fund so can't point to segregated property held for C

110

Ottaway v Norman

B agreed to make a will for C so forced to do so

111

'Notified... during my lifetime' but only after so no HST

Re Keen

112

What is the exception to the general rule on communication to only some Ts of FST?

Re Stead

113

Charles v Fraser general

Assumption

114

Sealed envelope

Re Keen

115

Re Keen on effect of non-compliance with HST

Property goes on RT

116

Birmingham v Renfrew justifying MW/nature of MW

Prevents unconscionable conduct through CT

117

Two cases on timing of MW

Thomas and Agnes v Carvel; Birmingham v Renfrew

118

Intending to defeat

Vatcher v Paull

119

What case shows that communication of a HST cannot be after the execution of the will?

Blackwell v Blackwell

120

What is the agreement of a MW considered equal to?

Contract at law

121

Will unrevoked after B's promise justified CT

Moss v Cooper

122

Agents

Moss v Cooper

123

Kasperbauer v Griffith general

'Knows what she has to do'

124

What two cases show two possible ways A may show reliance on B's acceptance of FST?

Strickland v Aldridge; Moss v Cooper

125

Why does property go on RT if HST fails?

Obvious B not intended to be beneficially entitled

126

Strickland v Aldridge general

Refraining from making a will

127

S.9 Wills Act 1837

Signed writing, witnessing by 2 individuals and all terms of the trust stated

128

What is a criticism of the justification that HSTs are dependent on the doctrine of incorporation?

Terms of HST need not be in writing and doctrine doesn't require B to be aware of the document

129

Birmingham v Renfrew

Floating CT

130

Bribe to act contrary to C's interests

AG for Hong Kong v Reid

131

Vatcher v Paull judgment

Intending to defeat what donor of power intended = fraud for MW

132

Re Rees judgment

If A writes 'take absolutely' with other arrangement extra-testamentary, this does not conflict

133

Instructions after death

Walgrave v Tebbs

134

Re Hagger

Life interest and remainder man possible subject matters of MW

135

What happens if B is ignorant of the FST terms?

Failing trust RT

136

What is the usual effect of an FST?

B holds on CT for C upon A's death

137

What are at least two justifications of the position of Blackwell v Blackwell on HSTs?

HSTs dependent on doctrine of incorporation, HST cannot contradict will wording and don't want A to have the power to make unwitnessed future dispositions

138

Re Keen judgment

As long as B knew about the trust and had the means of knowing the precise terms, this is enough

139

Re Dale general

To C and D equally

140

What case gives the general requirements for all secret trusts?

Kasperbauer v Griffith

141

Vatcher v Paull general

Intending to defeat

142

Mummery LJ in Olins v Walters

mutual wills continue 'to be a source of contention for the families of those who have invoked' the doctrine

143

What case shows that the probate doctrine of incorporation can help with evidential requirements of s.9 Wills Act 1837?

In the Goods of Smart

144

For CT, C can virtually get an interim injunction as of right before trial

Polly Peck v Nadir

145

Intending to defeat what donor of power intended = fraud for MW

Vatcher v Paull

146

What is it assumed would happen if a secret B under FST were to die?

RT would operate

147

From what jurisdiction was Birmingham v Renfrew?

Australia

148

Kasperbauer v Griffith judgment

3 requirements for all STs

149

Re Colin Cooper judgment

Only first amount communicated is trust property under CT

150

What section of Wills Act 1837 shows that s.9 refers to 'any testamentary disposition'?

S.1

151

AG for Hong Kong v Reid judgment

Personal obligation to pay money AND same proprietary rights through CT as under ET

152

Why is the judgment of Birmingham v Renfrew good law?

Followed in many English cases

153

Re Goodchild on nature of MW

Sui generis closely related to contractual action

154

Re Keen on HST conflict with will terms

'Notified... during my lifetime' but only after so no HST

155

Re Boyes general

Solicitor

156

What case shows that the effect of an FST is just to force B to fulfil his promise to A?

Ottaway v Norman

157

Re Stead judgment

LJ Farewell said that if will of JT property is made/left unrevoked after communication to B, all Ts are bound

158

Re Walter's on B's duties/rights under a MW

question of permissibility for use of property in B's lifetime is fact specific

159

What case showed that if HST communication made to one T before execution, all are bound?

Re Gardon

160

Why does Critchley reject the dehors the will theory?

WA covers ALL testamentary dispositions

161

What judge in what case enforced that MW is not enforcement of a contract?

Mummery LJ in Re Walters

162

Sonley v Clock Makers' Company

HST 'will not fail for want of a trustee'

163

David Donaldson QC in Healey v Brown

refused to enforce MW without compliance with LP(MP)A 1989 s.2

164

Irish case showing rejection of requiring HST to be communicated before will execution?

Re Browne

165

Gardner justifying MW

Enforcing detrimentally relied on agreements (PE)

166

Floating CT

Birmingham v Renfrew

167

Requires signed writing for a contract of land

LP(MP)A 1989 s.2

168

What academic argues Sts are inter vivos?

Maudsley

169

what does a bare power mean

B can exercise property for their own enjoyment as long as they don't intend to defeat the MW agreement

170

What academic thought HST should exist at all?

Hackney

171

What case shows that terms of HST can conflict with will?

Re Rees

172

How can Birmingham v Renfrew be criticised?

No such thing as a floating CT and lack of certainty of subject matter

173

Probate doctrine of incorporation

In the Goods of Smart

174

What judge in Re Stead was critical of the JT promise distinction for FSTs?

LJ Fairwell

175

Why was there an RT in Re Boyes?

Instructions after death so no ST, and failing trust as solicitor doesn't take gifts by definition

176

What case showed there is no need to receive property at all for MW doctrine?

Re Dale

177

What did A intend in Kasperbauer v Griffith?

That his widow leave all property to his 3 children when she died

178

Why is Maudsley's explanation of STs hard to accept?

can't declare an immediate trust of future property and wounded to comply with s.53(1)(b) LPA because would be express

179

What makes D personally liable to account under a CT, according to Independent Trustee Services v GP Noble Trustees?

Conscience affected with knowledge of CT circumstances

180

What happens if a secret trustee dies?

There should be no trust, if ST only constituted upon receipt of the property (maybe not the case though)

181

What case suggests that C's interest arises as soon as B accepts the ST obligation?

Re Gardner (No.2)

182

What is required between A and B before a CT is imposed, in general?

Agreement

183

With what case can the fraud theory of ST be linked with?

Rochefoucauld v Boustead

184

Re Heys on revocatin

If B revokes his will, will takes effect but D holds on trust for C

185

Conscience affected with knowledge of CT circumstances to be personally liable

Independent Trustee Services v GP Noble Trustees

186

Criticism of the justification that courts don't want A to reserve a power to make unwitnessed future dispositions?

FSTs do exactly that

187

Thomas and Agnes v Carvel

Obligation of MW when A dies

188

Who said to write off MW doctrine as 'sui generis' is an act of despair?

Liew

189

What was lacking of the three requirements in Kasperbauer v Griffith?

Communication

190

Re Gardner (No.2)

Suggests that in a HST, if secret B dies property would go to C's estate

191

Re Dale on MW justification

'To prevent A from being defrauded'

192

Criticism of the justification that HSTs cannot contradict will wording?

FSTs do

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