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Flashcards in Property Law - Resulting Trusts Deck (236):
1

What is the overall heading of resulting and constructive trusts?

Trusts arising by operation of law

2

what statute was modernised in the LPA?

Statute of Frauds 1677

3

Statute of Frauds 1677 preceded what Act?

LPA 1925

4

LPA 1925 s.53(1)(b)

Trust of land EVIDENCED in signed writing

5

What happens if a trust of land is not evidenced in signed writing?

Trust is valid but unenforceable

6

LPA 1925 s.53(1)(c)

Disposition of any subsisting equitable interest need be evidenced in writing

7

LPA 1925 s.53(2)

No formalities needed for CT/RT

8

No formalities needed for CT/RT

LPA 1925 s.53(2)

9

Disposition of any subsisting equitable interest need be evidenced in writing

LPA 1925 s.53(1)(c)

10

Trust of land evidenced by signed writing

LPA 1925 s.53(1)(b)

11

What is the outcome of finding an RT/CT?

Valuable property protection - right against 3rd, protection from D's insolvency and asserting equitable interest in new property

12

Westdeutsche v Islington LBC on conscience

Lord B-W - conscience need be affected with knowledge of circumstances giving rise to a trust in C's favour before a trust arises

13

What judge in that case said that conscience of D needs to be affected with knowledge of the circumstances giving rise to a trust before RT/CT?

Lord B-W Westdeutsche v Islington LBC

14

Independent Trustee Services v GP Noble Trustees on conscience

Lloyd LJ stated CT as soon as D acquired property, but no personal liability until knowledge

15

What judge in what case separated the proprietary and personal aspects of a CT/RT?

Lloyd LJ in Independent Trustee Services v GP Noble Trustees

16

Independent Trustee Services v GP Noble Trustees, per Lloyd LJ

Separated personal and proprietary aspects of CT/RT

17

Why do H&M believe the conflict between Lloyd J in ITS and Lord B-W in Westdeutsche is overstated?

Even under Lord B-W, B has a 'mere equity', sharing all the same proprietary attributes of an equitable trust

18

Who argues the conflict between Lloyd J in ITS and Lord B-W in Westdeutsche is overstated?

H&M

19

What is the content of B's trusteeship under an RT?

Bare trust - no duty to invest, just hold the property to account

20

From what Latin term does 'RT' come?

resalire

21

Resalire

Jumping back

22

What did Birks distinguish between?

Trusts resulting in pattern and resulting in origin

23

What is a trust resulting in pattern?

Whenever money returns to the original transferor

24

What is a trust resulting in origin?

Looking at the underlying reasoning and rationale of the trust, rather than just the mere fact of money returning to the original transferor

25

Under Birks' distinction between trusts resulting in pattern and origin, which is an RT?

Resulting in origin

26

Two types of RTs

Automatic gifts and failing trusts

27

What is another name for an automatic gift RT

Presumed RT

28

Two subcategories of Automatic gifts

Voluntary transfer and purchase in another's name

29

Give one case on purchase in another's name

Dyer v Dyer; Huntingford v Hobbs; Prest v Petrodel Resources

30

Dyer v Dyer general

No evidence whatsoever

31

Dyer v Dyer judgment

Presumption of RT arises without evidence to the contrary

32

Basic starting point for presumptions in apparent gifts

Dyer v Dyer

33

No evidence whatsoever

Dyer v Dyer

34

Huntingford v Hobbs general

Downpayment and mortgage

35

Downpayment and mortgage

Huntingford v Hobbs

36

Huntingford v Hobbs judgment

Proportion of RT is the proportions at time of purchase

37

Prest v Petrodel Resources general

Ancillary relief, flats

38

Ancillary relief, flats

Prest v Petrodel Resources

39

Prest v Petrodel Resources judgment on purchase in another's name

Irrelevant if all of part of the money is provided by D

40

Why does Mee argue voluntary transfer apparent gift category should be removed?

Absence of evidence to show it wasn't a gift, so it should be a gift

41

Re Vinogradoff general

Grandmother, granddaughter

42

Prest v Petrodel Resources judgment on voluntary transfer

Nothing to rebut equitable presumption that company not intended to acquire beneficial interest

43

Re Vinogradoff judgment

Personalty - nothing to rebut presumption

44

Grandmother, granddaughter

Re Vinogradoff

45

Hodgson v Marks general

Lodger, elderly widow, oral agreement

46

Lodger, elderly widow, oral agreement

Hodgson v Marks

47

Hodgson v Marks judgment

RT as soon as land transferred to lodger, and purchase stepped into lodger's shoes upon purchase

48

What case suggested that oral agreements not protected as express trusts under LPA amount to negative intention for RT?

Hodgson v Marks

49

Lord B-W in Westdeutsche on presumptions

They can be 'easily rebutted'

50

Two exceptions to presumption of apparent gift

Family home context and voluntary conveyance of land

51

LPA 1925 s.60(3)

RT not implied for voluntary conveyances of land because of lack of express intention

52

RT not implied for voluntary conveyances of land because of lack of express intention

LPA 1925 s.60(3)

53

Lohia v Lohia

LPA abolished presumption of RT for voluntary land conveyances

54

What case made it clear that LPA abolished presumption of RT for voluntary land conveyances?

Lohia v Lohia

55

Why can the judgment in Lohia be doubted?

First instance decision

56

Prest v Petrodel Resources doubting Lohia

SC did not consider s.60(3) at all

57

What case doubts the abolition of presumption of gift in the case of voluntary conveyances of land?

Prest v Petrodel Resources

58

What is a positive of LPA s.60(3)?

Formalities increase the likelihood that transferor intended to make the conveyance, so presumption not needed

59

Midland Bank v Cooke general

Less than 7% contribution

60

Less than 7% contribution

Midland Bank v Cooke

61

Midland Bank v Cooke judgment

Inference of common intention meant married coupled intended equal beneficial shares, not presumption of gift

62

Stack v Dowden, per Hale

RTs should be avoided in shared homes

63

Stack v Dowden per Neuberger

RTs shouldn't be completely abandoned in domestic contexts, but same outcome

64

Two relevant judges in Stack v Dowden

Neuberger and Hale

65

What judge in Stack said RTs should be avoided in shared homes?

Hale

66

What judge said RTs shouldn't be completely abandoned in domestic context?

Neuberger

67

Abbott v Abbott per Hale

'Now clear that the CT is generally the more appropriate tool'

68

What judge in what case stated it is 'now clear that the CT is generally the more appropriate tool'?

Hale in Abbott v Abbott

69

Jones v Kernott general

Joint occupation, mortgage

70

Jones v Kernott

Stack prevents RT when home in joint names for joint occupation by a couple

71

What case suggested Stack prevents RT when home in joint names for joint occupation by a couple?

Jones v Kernott

72

What case allowed that the presumption of an RT may still be relevant in other domestic cases?

Jones v Kernott

73

What case gave four conditions for JT in common law and equity?

Jones v Kernott

74

Four conditions for JT in common law and equity?

Joint names, occupation, couple and mortgage under both names

75

Laskar v Laskar general

Mother daughter invesmtnet

76

Laskar v Laskar judgment

Neuberger rejected CT only way in family home, because of investment purpose

77

Why did Neuberger reject CT in Laskar v Laskar?

Investment purpose

78

Gallarotti v Sebastienelli general

Friends, B sole name, larger contributions not made

79

Friends, B sole name, larger contributions not made

Gallarotti v Sebastienelli

80

Gallarotti v Sebastienelli judgment

CT gave 25% share, almost exact same as contributions

81

What two cases show that CT/RT distinction makes little difference to the outcome?

Gallarotti v Sebastienelli; stack v Dowden

82

What does a presumption of RT require?

Absence of evidence and proof of a transfer

83

Mackowik v Kansas City said what of presumptions?

They are 'bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts'

84

What case said presumptions are 'bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts'?

Mackowik v Kansas City

85

Calverly v Green general

1/3 purchase, 2/3 joint mortgage

86

1/3 purchase, 2/3 joint mortgage

Calverly v Green

87

Calverly v Green

RT at time of purchase was 2/3 to M and 1/3 to W, but lien to M for what W had promised to pay

88

What evens out the fact that RTs are determined at the time of purchase?

The fact that A an get a lien for whatever B did not pay

89

What is a presumption of advancement?

Court assumes likely default is a gift to B

90

Who sais presumptions of advancement are not true presumptions?

Mee

91

Who said presumptions of advancement are true presumptions?

Chambers

92

Shephard v Cartwright

Loco parentis

93

Loco parentis

Shephard v Cartwright

94

Tinker v Tinker

Husband/fiancee for presumption of advancement

95

Husband/fiancee for presumption of advancement

Tinker v Tinker

96

Stack v Dowden on presumptions of advancement

Cohabitation insufficient for presumption of advancement

97

Cohabitation insufficient for presumption of advancement

Stack v Dowden

98

Abrahams v Trustee of Property of Abrahams general

Wife insufficient for presumption of advancemnt

99

Wife insufficient for presumption of advancemnt

Abrahams v Trustee of Property of Abrahams

100

Pecore v Pecore general

Mother and children in Canada allow presumption of advancement

101

Mother and children in Canada allow presumption of advancement

Pecore v Pecore

102

What case shows the question of presumption of advancement between mother and children not yet settled?

Garrett v Wilkinson

103

Garrett v Wilkinson general

Mother and child, England, widow

104

Mother and child, England, widow

Garrett v Wilkinson on presumptions of advancement

105

What Act attempted to abolish presumption of advancement?

Equality Act 2010 s.199

106

Why do H&M argue not a big deal that EA2010 not in force yet?

Court can abolish presumption between spouses and gender bias probably contravenes Article 5 7th Protocol ECHR anyway

107

Who highlight presumption of advancement probably contravenes Article 5 7th Protocol ECHR anyway?

H&M

108

What part of the ECHR do H&M suggest presumption of advancement contravenes?

Article 5 7th Protocol - equality of spousal rights

109

CPS v Malik general'

Very slight intention'

110

CPS v Malik judgment

Only need very slight intention to establish intention of advancement anyway

111

what case highlighted how the presumption of advancement is not important as only need very slight intention to establish intention of advancement anyway?

CPS v Malik

112

When are presumptions of RT and advancement most important?

When evidence on which A wants to rely to establish intent refers to an achieved improper purpose

113

Tinsley v Milligan general

Lesbian, social security benefits

114

Lesbian, social security benefits

Tinsley v Milligan

115

Tinsley v Milligan judgment

If you must rely on illegal purpose to establish presumption, illegality defence blocks the claim

116

What case gave the reliance approach to illegality defence?

Tinsley v Milligan

117

What did Lord B-W highlight in Tinsley v Milligan?

Fusion of law and equity mean that, if C tries to enforce a property right under illegal transaction, it is irrelevant if the right is legal or equitable

118

When was the illegal purpose relevant in Tinsley?

When D was trying to rebut the presumption of an RT

119

What did the Law Commission suggest after Tinsley?

More flexible approach needed to illegality defence

120

What was the Law Com's 'more flexible approach' to illegality?

Statutory scheme with discretion

121

Les Laboratoires Servier v Apotex general

Interlocutory injunction, manufacturing illegal

122

Interlocutory injunction, manufacturing illegal

Les Laboratoires Servier v Apotex

123

Les Laboratoires Servier v Apotex per Lord Sumption

Approved Tinsley, rejecting public conscience test from LC

124

Why did Sumption reject public conscience test of LC in Les Laboratoires Servier v Apotex?

Directly inconsistent with Tinsley

125

What is a criticism of the approach in Tinsley?

Illegality has nothing to do with the relationship between C and D

126

Tribe v Tribe general

Shares to child, worried about claims never arose

127

Shares to child, worried about claims never arose

Tribe v Tribe

128

Tribe v Tribe judgment

Only prevented from relying on evidence of illegal purpose if achieved

129

What three conditions were there for relying on non-achieved illegal purpose?

No need for genuine repentance, need to voluntarily refrain from going through with transaction and not enough that C forced to withdraw from discovery

130

What case gave three conditions for relying on non-achieved illegal purpose?

Tribe v Tribe

131

Bilta (UK) v Nazir (No.2) Toulson and Hodge

Toulson and Hodge adopted Tinsley CoA approach on public policy for flexibility

132

Bilta (UK) v Nazir (No.2) Sumption

Approved Tinsley

133

Bilta (UK) v Nazir (No.2) Neuberger

No determination on correct test for illegality defence

134

Why did Neuberger reject construction of the correct illegality defence test in Bilta (UK) v Nazir (No.2)?

Not determinative in the case, and little argument on the topic by council

135

Who approved Tinsley in Bilta (UK) v Nazir (No.2)?

Sumption?

136

Who adopted Tinsley CoA approach on public consciencee in Bilta (UK) v Nazir (No.2)?

Hodge and Toulson

137

Who rejected the construction of correct illegality defence test in Bilta (UK) v Nazir (No.2)?

Neuberger

138

What did Law Com criticise about the presumption of advancement in illegality?

Ability to recover depends on the presence of a sufficiently special relationship

139

What does a failing trust require?

Failed intent to create a trust, absence of intent to benefit T and absence of valid allocation of trust property to anyone else of charitable purpose

140

What is another name for failing trusts?

Automatic RTs

141

Automatic RT

Failing trust

142

Presumed RT

Apparent gift

143

What are the three possible outcomes from a failing trust?

Bona vacantia, to T or to S

144

Why does Swaddling argue no RT needed in failing trust cases?

Personal liability under unjust enrichment is sufficient

145

What do failing trusts creating RTs allow S to do?

Re-declare the trust if that is what she wanted

146

What are the three subcategories of failing trusts?

Express trust fails entirely or partially, trust objective achieved with surplus or dissolution of unincorporated association

147

Name at least two cases when an express trust failed entirely/partially

Vandervell v IRC; Re Shaw; Re Foord; Barclays Bank v Quistclose; Twinsectra v Yardley; Re Flower's Settlement Trusts

148

Vandervell v IRC general

Professorship, shares to RCS, dividends and OTP

149

Professorship, shares to RCS, dividends and OTP

Vandervell v IRC

150

Vandervell v IRC judgment

Trust company cannot own shares for itself, so RT back to S

151

Re Shaw general

Research into 40-letter alphabet

152

Research into 40-letter alphabet

Re Shaw

153

Re Shaw judgment

Private purpose failed, but not for T so RT

154

Re Foord general

Sister absolutely, widow annuity

155

Sister absolutely, widow annuity

Re Foord

156

Barclays Bank v Quistclose general

Dividends to shareholders

157

Dividends to shareholders

Barclays Bank v Quistclose

158

Barclays Bank v Quistclose judgment

RT on failure of purpose trust, primary and secondary framework

159

What case and judge reinterpreted Barclas Bank v Quistclose?

Lord Millett in Twinsectra v Yardley

160

Twinsectra v Yardley general

Money for house

161

Twinsectra v Yardley judgment

Lord Millett reinterpreted Quistclose - immediate RT with power to apply money for purpose

162

Re Flower's Settlement Trusts general

Doctrine of acceleration

163

Re Flower's Settlement Trusts judgment

Doctrine of acceleration blocks RT

164

What case showed Doctrine of acceleration blocks RT?

Re Flower's Settlement Trusts

165

What two cases show failure of a trust is a fact-specific question?

Re Abbott and Re Osoba

166

Re Abbott general

Deaf and mute women

167

Re Abbott judgment

Trust for them only whilst surviving, then RT

168

Re Osoba general

Widow, mother and daughter

169

Widow, mother and daughter

Re Osoba

170

Re Osoba judgment

For benefit of all as JTs, so whole interest disposed of by terms of initial transfer

171

Deaf and mute

Re Abbott

172

Two cases showing trust objectives achieved, with surplus

Davis v Richard & Wellington; Air Jamaica

173

Davis v Richard & Wellington general

Pension scheme, surplus from employer and employee contribution

174

Pension scheme, surplus from employer and employee contribution

Davis v Richard & Wellington

175

Davis v Richard & Wellington judgment

Employer contribution RT but employee bona vacantia

176

Why did employee contributions in Davis v Richard & Wellington go on bona vacant?

Unworkable RT and gave more than legislature intended when imposing statutory limits

177

Why was the RT considered unworkable if allowed RT to employer's contributions in Davis v Richard & Wellington?

Different value of benefits to each employee

178

Air Jamaica general

Privatised company, pension fund, expressly no RT

179

Privatised company, pension fund, expressly no RT

Air Jamaica

180

Air jamaica judgment

RT because operation of law, so trust fund instrument irrelevant

181

What did Millett find unconvincing about Davis v Richard in Air Jamaica?

RT unworkable, because just pro rata distribution

182

What did Millett suggest about justifications for RT in Air Jamaica?

Retention theory wrong, because RT clearly did not respond to A's positive intention

183

Name at least two cases on dissolution of unincorporated associations for failing trusts

Re West Sussex; Re Bucks; Hanchett-Stamford v AG

184

Re West Sussex general

Fund for widows and orphans, raffle

185

Fund for widows and orphans, raffle

Re West Sussex

186

Re West Sussex judgment

Donations and legacies on RT

187

Re Bucks general

Widows and orphans, no rules for winding up

188

Re Bucks judgment

Doubted Re West Sussex, paying proper attention to primacy of members' contracts for beneficial interest

189

What case doubted Re West Sussex?

Re Bucks

190

Widows and orphans, no rules for winding up

Re Bucks

191

Hanchett-Stamford v AG general

Anti-vivisection defence league, wife

192

Hanchett-Stamford v AG judgment

Property vested absolutely in wife as last surviving member

193

What two things did Lewison J reject in Hanchett-Stamford v AG

Charitable purpose of association, and that property went on bona vacantia

194

What case suggested in obiter that if there is only one surviving member of a UA, property goes on bona vacantia?

Re Bucks

195

Supporter of negative intention theory

Chambers

196

Supporter of liberalism and autonomy justification of RTs

Gardener

197

Who called apparent gifts and failing trusts automatic/presumed RTs?

Megarry VC in Vandervell v iRC

198

Megarry VC in Vandervell v iRC

Called apparent gifts presumed RTs and failing trusts automatic RTs

199

Supporter of unjust enrichment justification/alternative for RTs

Chambers

200

Supporter of positive intention theory for apparent gifts

Mee

201

Supporter for apparent gifts RTs responding to A's declaration of trust

Swadling

202

Who said failing trusts 'defy legal analysis'?

Swadling

203

What judge in what case highlighted how the retention theory is incorrect because there is no split of legal and equitable title prior to a trust?

Lord Browne-Wilkinson in Westdeutsche Bank v Islington

204

Why did Megarry VC in Vandervell call FTs automatic?

RT happens upon the trust failing, automatically

205

Why did Megarry VC in Vandervell call AGs presumed?

Equity is cynical that A intended a gift without intention

206

What judge in what case said that all RTs respond to A's common intent, and RT not imposed against B's intention

Lord Browne-Wilkinson in Westdeutsche Bank v Islington

207

Why was Lord Browne-Wilkinson's view on common intention RTs in Westdeutsche Bank v Islington problematic?

He required common intent for the trust, but focus on B's intent when asking if against his intent to impose the trust

208

What case casts doubt on the common intention theory of RTs and why?

Re Vinogradoff - minor can't form an intent

209

What case first recognised UE in England?

Lipkin Gorman v Karpnale

210

Lipkin Gorman v Karpnale

First recognised UE in England

211

In what decade was UE first recognised in England

1990

212

What are the two issues with UE justification of RT?

Not all UE claims result in proprietary remedies, but personal ones, and 'unjust factor' can't be present if basis of the theory is a lack of evidence

213

What factor needs to be present for UE claim?

'Unjust'

214

Why can there be no unjust factor in RT cases?

Lack of evidence bases the RT presumptions, so no 'unjust factor'

215

Who argues AGs shouldn't be RTs at all, as they are simply a state of affairs?

Mee

216

Re Vinogradoff on the positive intention theory by Mee

No intention at all of what Grandmother wanted, so no positive intention to declare for herself

217

What academic essentially aligns RTs with express trusts?

Swadling

218

What are the two problems with Swadling's declaratory analysis of AGs?

RTs arise for lack of proper trust declaration, and thus are NOT express trusts, and s.53(2) LPA explicitly excluded RT and CTs from formalities

219

What, textually, is hard to explain in LPA is RTs arise on presumption of A's intent to declare a trust for himself?

S.53(2) LPA exclusion of RTs and CTs from formalities

220

What is a positive of Chambers' UE analysis of RTs?

Identifies common underlying basis of both AG and FT - A's negative intention

221

In what case was the UE justification rejected?

Westdeutsche v Islington LBC

222

Who said Chambers' UE theory 'proves too much'?

H&M

223

Why did H&M think Chambers' UE theory 'proves too much'?

Causes RTs to arise WHENEVR A transfers property to B with vitiated intention

224

What is the immediate issue with Lord B-W's common intention justification for FTs in Westdeutsche?

RT arises even if A did not intend to get the beneficial interest back

225

What academic highlighted to offer support for common intention analysis of FT, how RT is probably what an 'abstract class' of S's would likely prefer?

Mee

226

Mee, offering support for common intention analysis of FT

RT is probably what an 'abstract class' of S's would likely prefer

227

What academic explains FTs through negative intention?

Mee

228

How does Mee explain FTs through negative intention?

S intends to create a trust, but no intent to benefit B or anyone else

229

Two criticisms of Mee's negative intention justification for FTs

Intention unnecessary if RT arises upon UA dissolution, and S may intend to benefit SOMEONE, but fails on this point/there is surplus

230

What case suggested FTs respond to A's positive intention to retain the beneficial interest?

Re Foord

231

Re Foord general

Sister, wife, annuity

232

Sister, wife, annuity

Re Foord

233

What showed S did not intend to retain the beneficial interest in Re Foord?

'Absolutely' by lay person, informal address and non-income producing property as part of gift

234

Who argued Chambers, in his UE analysis, blurs the distinction between FT and UE?

Mee

235

How does Mee believe Chambers blurs the distinction between FT and UE?

FT is more than UE - absence to benefit B when A intended B to take as T can only mean A did intend to create a trust, just not to benefit B

236

What case casts doubt on Mee's positive intention theory of AGs and how?

Vandervell v IRC - A may not want to benefit B, but he also clearly didn't mean to declare a trust for himself

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