In this scenario, Adela made a will and has appointed her solicitor, Russel Rance as an executor and trustee. In order for a trust instrument to be valid, it must show the certainty of intention, the certainty of subject matter and the certainty of objects. These requirements have been set up in many cases, for example, by Lord Langdale in Knight v Knight. It can be argued that the essence of a trust is to impose a binding obligation on the trustees .
(a) In disposition ‘a’, Adela has directed Russell Rance to hold 500 of her shares in Rainbow Limited for Denzel, in the full conviction that he will sell and divide the proceeds equally among the children she has fostered. In order for this declaration of trust to be valid, all the three requirements
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Adela has shown clear intention to give Russel Rance a discretionary and fiduciary power to distribute the remainder of the estate as he shall ‘consider appropriate’. The subject in this disposition is the ‘remainder of my estate’. This is sufficiently capable of ascertainment to form the subject matter of the trust. It can be argued that the estate has been segregated by Adela from a larger amount. The executor can easily calculate the residuary estate. The problem in this disposition is the certainty of objects because the names of the beneficiaries have not been provided. It can be argued that Russel needs to know the beneficiaries in order to distribute the trust property. Since, Russel was given the power of appointment, the test known as ‘given postulant test’ will be applied. Hence, the trustee will not be under a duty to distribute but under a duty to consider. Also not every member of the class of objects needs to be considered as long as it is ascertainable that any given postulant either is in the class or is not. Although it is not possible to ascertain every member of the class, the power does not fail. This has been confirmed by Re
The form of intention required for the creation of an express trust was scrutinized in Byrnes v Kendle (2011) 243 CLR 253. The judgements by French CJ, Gummow and Hayne JJ and Heydon and Crennan JJ, provide insight into the current legal standpoint on the relevant form of intention.
In order to have a valid contract, there are six elements that need to be established. The following is a defined list of these elements, as well as analysis pertaining to the case at hand.
A Quistclose trust arises when money is paid to a recipient for a specific purpose, if that purpose fails the money is held on trust for the payer. It mostly arises in insolvency cases where the proprietary rights have to be established. However, this type of trust has been thought to be inconsistent with the traditional trust principle. Many have suggested the Quistclose trust must be treated as any other fully fledged security device taking into account the protection it offers the payer on insolvency and should therefore be registrable. This essay critically analyses the concept of Quistclose trust, whether it differs from the resulting trusts.
Donald Cole was in an accident June 17, 2011. He died due to complications of his injuries on October 8, 2011. At the time Rodney let it slip that we were on the trust so I requested a copy of the trust. He refused so I sent 2 certified letters requesting the trust. He then gave myself and Kelley a copy of the trust but refused one to Richard. Richard had suffered a debilitating stroke and his wife was his representative so Rodney felt she should not have a copy. Rodney had started logging the property in August of 2011. He paid some of the trust obligations and my father's funeral expenses. He then began to pay for his living expenses. He also lived in the trust house and continued to log the next year. We hired Thomas Crawford in the spring of 2012.
However, this has been found to be insufficient in maintaining the original title because “Its soil is rapidly passing into the hands of the stranger” (8). In a case where the successor wants to pass down their legacy, they should at least divide the money among children equally. Honestly, why do men leave their riches to their children? It does not seem to be a gesture of love. In fact, these bequests are more likely to be used improperly than for the good.
Monetary value is however indicative of property as evidenced by Yanner v. Eaton’s example of debt as property. The initial issues in Hoiland v. Brown similarly regard the deliberation of whether a chattel “left in the possession” of another for their “use” constituted a gift or a resulting trust. While the chattel in Hoiland was found to constitute a gift, it can be distinguished from the facts at hand because the claimant satisfied the onus to prove that “there was indicia of a gift.” A contributing factor to this finding was that the chattel had never been in possession of the purchaser. In contract to the fact of this case, Brenda did have possession of the eggs both before and after the purchase. They were put in her cart, paid for and subsequently retained by Brenda. It is only after the eggs were put in Brenda’s car and driven to Wendy’s apartment that the eggs were relinquished from Brenda’s possession into the care of Wendy. When the eggs Brenda purchased were left in the possession of Wendy Brenda gave the impression that they were for her use but, as indicated above, never indicated the intent to transfer full title and beneficial interest to Wendy. Supported by persuasive case law found in Yanner, it seems Brenda’s actions imply that she intends to hold beneficial interest proportionate to her
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.
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
Given that it lies within the domain of equity, the case law indicates a great flexibility in its application, both in the substantive requirements of proof demanded by the courts and in the manner in which the courts will satisfy the equity. It is the first of these aspects of the doctrine that I will examine in this essay. I will look at the shift in the evidentiary requirements and what a representation (or an assurance of rights), a reliance (a change of position on the basis of that assurance) and a detriment (or unconscionable disadvantage) - the three pre-requisites for a successful claim - have come to mean with regard to case law and in particular the judgement of Judge Robert Walker in the Court of Appeal in Gillett v. Holt[1], in which the plaintiff had been given repeated assurances over many decades that he would inherit the defendant's estate, and remained in service to him at least p... ... middle of paper ... ... operty, 16th Ed, Butterworths K. Gray & S.F Gray - Land Law, 2nd Ed, Butterworths Professor Cedric D Bell - Land: The Law of Real Property, 3rd Ed, Old
Trust is the first one of the characteristics and is very important in our profession. Without trust in our profession we could not accomplish anything. In Chapter on...
Consider the validity and effect of the following two clauses in the will of Dan: a) ‘I leave my cottage, at 42 Drumsesk Road, to my friend Gurpreet in full confidence that he will dispose of it in accordance with the instructions given to him during my lifetime’. Just before Dan signed the will, he told Gurpreet that he had left a ‘sum of money’ in the will to Gurpreet which he wanted him to hold for the benefit of Jenny. Gurpreet witnessed the will. Jenny died two days before Dan leaving two children. b) ‘I leave my residuary estate to my brothers Ken and Sam jointly’. A few days before the execution of the will Dan gave Ken a sealed envelope, saying ‘these are some instructions I want you and Sam to carry out when I die’. Ken replied ‘you know you can rely on me – if it’s fine with Sam it’s fine with me’. A year later Sam and Dan were killed in a car accident. The sealed envelope says that Dan wanted his residuary estate to pass to his youngest son Joseph. Advise the executors of Dan’s will.
Various elements must be present to prove that a valid contract exists between Sam and the chain store. The four elements to a contract are agreement, consideration,
Apart from the statutory obligations in the Trustees' Act, the court introduced the overarching duty of loyalty as the core
Completely constituted trusts are segmented into executory and executed trusts. Executory trust is when a declaration or instrument requires the successive execution of further instruments while an executed trust is when the settlor has clearly and expressly stated what the interests of the beneficiaries are in the trust instrument. When a trust is not properly constituted, there will be no equitable proprietary interest for the beneficiaries. In such situations, the trust is enforceable under contract otherwise the beneficiaries are regarded as “volunteers”. A volunteer is a beneficiary who does not have valuable consideration for a promise or agreement for property to be transferred to him through trustees. Settlors must do everything within their power as necessary according to the nature of the property so that the settlement would be binding. There are three wa...
Using the 4 step process, consider whether the element of agreement required for the formation of legally enforceable contract has been satisfied in the above scenario involving Isabella and Sienna.