A gift is the transfer of legal property such as land, a house or money. Since there is no consideration for the gift, a gift is not regarded a contract and as such a gift will fail if the person giving the gift does not take the necessary steps to divest himself from the gift. Where a gift fails it reverts back to the person intending to make the gift or to the estate of that person where the gift is testamentary. A completely constituted trust implies that the trust property is conferred to the trustees and the trust is binding on the donor who cannot revoke the trust. When the trust property is not properly vested the trust is considered incompletely constituted and it is void as equity will not force the donor to complete the trust. The principles of constitution of trusts are derived from the case of Milroy v Lord (1862 where turner L.J. stated that the complete constitution of a trust requires the actual transfer of property from the person making the gift to the beneficiary, a transfer of the intended gift to the trustees to be held in trust for the beneficiaries or the self-declaration of a trustee. The principle in this case is that a gift can only be enforced in equity if it satisfies one of the three requirements. Where the trust does not meet any of the three requirements the trust is considered an imperfect on incompletely constitutes trust. If the donor fails to complete all the formalities required by common law, then equity will not assist the intended beneficiary and thus the gift will be imperfect. The equitable maxim applicable is that equity will not complete an imperfect gift. Equity will not assist a volunteer The common rule in equity is that “equity cannot perfect an imperfect gift and this was demo... ... middle of paper ... ...am R, Incompletely constituted trusts: Covenants to settle property (Equity & Trusts: Text, Cases, and Materials 2013). Bray J, Key Cases: Equity & Trusts (Routledge2013) Bray J, A Student's Guide to Equity and Trusts (Cambridge University Press 2012) Ramjohn M, Equity and Trusts 2009-2010 (Taylor & Francis 2009) Hudson A, Understanding equity and trusts (Routledge 2012) Ford E, ‘Incomplete Gifts in Equity’ (2002) 13 King's Law Journal 222 Finn P, ‘Common law divergences’ (2013) 37Melbourne University Law Review 509 Smith L, ‘Common Law and Equity’ (2011) 68 Washington & Lee Law Review Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353 Andrews N, ‘Does a third party beneficiary have a right in English law?’ (1988) 8 Legal Studies 14
The special equity applicable to a case where a wife gives a guarantee of a debt for the benefit of her husband and where the wife's agreement to give the guarantee was obtained by undue influence, pressure or misrepresentation on the part of the husband or without an adequate understanding of the nature and effect of the transaction, she has failed to establish that she executed the relevant guarantee as a result of the exercise of actual undue influence on the part of the husband. In my opinion, in today’s society married women do not strive the need for the rule of special protection found in Yerkey. In addition banks have no obligation to take caution into transactions where a married women is to become a surety for her husband even though it may be a possible disadvantage to her.
Though there is no need for either party to use the word trust, the courts must be able to construe some sort of positive intent that the equitable interest was not to reside in the transferee. However Lord Millett later in Twinsectra Ltd denounces the emphasis previously placed on the party’s intent. Twinsectra involved a borrower seeking short term finance for the purchase of land and Lord Millett in this case states that Quistclose trusts are resulting trusts which arise by operation of law. His conclusion is based on the theory that resulting trust emerges when there is a transfer of property in circumstances in which the transferor did not intend to benefit the recipient. Carnworth J, however contends that from Twinsectra it seems that the parties place no real significance to the purpose so even applying Lord Millett’s newly configured resulting trust analysis, there is no real intent on the lenders part to ensure that the recipient does not receive the money at his free disposal. Furthermore, a key aspect of any intent to create a trust always revolves around the funds being held separately and so by devaluing this factor Lord Millett is detracting from traditional trust law principles and in the process is making it much easier to find a Quistclose trust in situations where it was never
Upon termination of the trust the trustee shall distribute the trust property as agreed to by the beneficiaries and, in the case of a charitable trust, requiring the Attorney’s General consent, as agreed to by the Attorney General.
The concept of attorney – client privilege has been a long withstanding foundation of the English legal system. It is arguably among the basic principles of justice. This is why when this doctrine is under threat we must pay close attention. Such was the case in Bowman v Fels, where the entire principal was possibly under major reform. The discussion of this paper will critically analyze the decision reached in this case, and the reasoning behind said decision. I will begin my analysis by first establishing the facts and the issues that arose during the hearing. And then proceed to analyse the issues in order to better determine the wider impact the case had. Following the decision of the Court Of Appeal, many critics raised questions regarding the issues not dealt with by the decision, these critiques and further questions raised about the scope and direction which English Law is heading will also be analysed. Before we begin delving into the analysis we must first establish the facts of the case as presented.
Blanchette) only intended to confer survivorship rights. The court established a rule that establishes a rule that joint tenancy normally by default is an immediate gifts unless there is strong evidence that proves that the donor intended to convey survivorship rights using joint tenancy as a revocable will substitute or had another intention. irrevocable property rights the question of ownership of property acquired by one party but placed in joint names is one of fact: it depends on the intent of the funding party. The court’s reasoning is based on the fact that a will substitute trend was occurring at the time. Many individuals made the choice to confer survivorship rights of their estate through will substitutes, using them as a revocable gift that could be left to survivors instead of using the traditional probate will. The court wanted to give will substitutes legal
If I name two or more primary beneficiaries to receive a specific gift of property and any of them do not survive me, all surviving primary beneficiaries shall equally divide the deceased primary beneficiary's share unless I have specifically provided otherwise. If I name two or more alternate beneficiaries to receive a specific gift of property and any of them do not survive me, all surviving alternate beneficiaries shall equally divide the deceased alternate beneficiary's
The rise of the unprecedented ageing of the population in Australia has provoked a significant amount of interest being paid with regards to the difficulties facing elderly people who have become subject to various forms of abuse, including financial abuse. Subsequently, situations have arisen whereby an improper acquisition of the elder’s assets by their children or other relatives appointed to protect their interests has led to an increase in equitable doctrines being pleaded to set aside these transactions . Therefore, the purpose of this essay is to critically examine the ways in which the operation of the equitable doctrines of undue influence inter vivos and unconscionable dealings for the elderly claimant has been applied in the
Terence Etherton (2008) – Constructive trusts: a new model for equity and unjust enrichment. Cambridge Law Journal
There are three main actions which can help avoid probate. These are: Jointly Titled Assets, Payable on Death or Transfer on Death Accounts, and a Revocable Living Trust. They all have their positive and negative aspects. This article is to briefly touch on each action and the different consequences of each.
In doing so, the court departed from the previous rulings in Lister and Sinclar which only found a personal claim. FHR has attracted academic debates, not least because the effect on unsecured creditors. In this respect, Goode 2011 finds it hardly justifiable to allow a principal to rank ahead of the unsecured creditors who have given consideration. Furthermore, Rotherham deems that the finding of constructive trust does not reflect the true intention of briber, because the bribe arguably was never intended for the principal. These points have been noted by Lord Neuberger in FHR, who opined that these should be outweighed by the principal’s proprietary claim. Firstly, the bribe money should not be in the fiduciary’s estate in the first place. Secondly, the payment as such had very often reduced the benefit of the principal relevant transaction and thus can be seen as belonging to the
This individual places his/ her assets into the trust to be retitled to the ownership of the trust. Depending on the type of trust drafted, a grantor may or may not have to include the property held in the trust in his/ her gross estate upon death. However, trust documents specifically name the individual that the assets are to go to. Because of this, the trust and the assets within do not have to go through the probate process at the death of the grantor. Avoiding probate, and the fees that are often associated with probate, is another huge reason that trusts are common tools in the estate planning
part of the Doctrine Hedley Byrne and Co. Ltd V Heller and. Partners Ltd (1964), Rondel V Worsley (1969).
A trust is a legal relationship whereby one person (the ‘trustee’) holds assets for the benefit of one or more other parties (the ‘beneficiaries’). A discretionary trust (also known as a family trust) is a trust in which the trustee is given the power/discretion to decide which of the beneficiaries are to benefit from the trust.
Equity is frequently referred to as a supplement to the common law. Cruzon defines Equity as a system of law developed by the court of chancery in parallel with the common law. It was designed to complement it, providing remedies for situations that were unavailable at Law. Because of this, Equity provided a dimension of flexibility and justice that was often times lacking because of the common law’s rigidity. This rigidity stems from the fact that, while courts sometimes altered their jurisdictions and procedures, the fundamental premises and noticeable forms of the common law went largely unchanged between the 13th and 19th centuries.
selection of assets to be sold shall not be questioned by any beneficiary unless such