Introduction: In order to decide the most advantageous approach for trustees to take in a discretionary trust, it is important to first begin with the definition of a trust. The word ‘trust’ has been defined in many different ways. A well detailed definition is that of Underhill who describes a trust as “an equitable obligation binding a person (called a trustee) to deal with the property over which he has control (called the trust property) for the benefit of persons (called beneficiaries) of whom he himself may be one and any of whom may enforce the obligation.” A discretionary trust is where there is an obligation upon the trustee of certain property to distribute it amongst a certain class of beneficiaries, but with discretion as to the manner of …show more content…
Stamp LJ shows that the approach in the Gulbenkian case is the approach he agrees with. If there is any person, who cannot be ensured with certainty that they are an object to the trust, it will fall due to the uncertainty of objects. Stamp LJ appears here to be harsh, as any postulant would have to conform to a “yes” box or “no” box . If one person is uncertain, this will result in the whole trust becoming invalid . An advantage of this approach is that the trustee will know for certain if a person is in or out of the class from the start. However, is it fair that a whole trust will become void due to a few uncertainties? The ‘complete list’ approach that Stamp LJ closely mimics would not be the best approach for a trustee to take in a discretionary trust. This is because the ‘complete list’ is a test which was designed to be applied to fixed trusts, like in IRC v Broadway Cottages . This approach defies the intention of the settlor as it defeats the point of creating a discretionary trust and not a fixed
As if being the father of two children and a dedicated husband were not enough, Victor Terhune has to balance his family life with his job. Victor currently works as a Technical representative for the sales department at Weastec in Dublin, Ohio. Though work holds him back from doing some of the things that he would like to be doing, like spending more time with his wife and sons, this is a common theme for many workers today in a relationship with their desire to be with their families. Victor strives to get resolution to this by making time by driving home right after work and focusing on that quality time with his family.
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
The first power of appointment mentioned in the Will is in the second paragraph. In this case, Roosevelt (power holder/donee) is directing that the $60,000 trust fund, which he received from his father (creator or donor), be given to his children in equal amounts. It can not be determined if Roosevelt exercised a general power of appointment or a limited power of appointment because the language of his father’s will is unknown, and thus there is no way to determine whether or not Roosevelt had any restrictions on the enjoyment of the money contained in the fund.
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
In the article, Doctor Turns to Kevorkian: Oak Brook Man’s Suicide Enters Right to Die Debate, Kiernan and Gottesman, (1993) tells the story of Dr. Ali Khalili and probes the merits of his decision to end his own life, and his choice of asking Dr. Jack Kevorkian to assist him.
Social Work is the study of people and how they interact with the systems in their environment and other people. Social Workers use theories, sets of ideas or concepts, of human behavior and apply them within their professional social work ethics to the problems facing clients in order to help them gain balance in the systems in their lives. Theories help to organize knowledge enabling social workers to help make sense of problems. There are many different theories. They have been grouped into broad categories called theoretical lenses (Rogers, A. 2013).
RL Wolfe is an engineering and productions company that deals with the production of plastic pipes. The company has its headquarters in Houston, Texas. It is worth 350 million dollars and has three branches that include Wolfe’s Austin based in Texas, Columbus based in Ohio and the most recent branch that the company acquired based in Corpus Christi, Texas. The company has been trying to adopt new human resource management (HRM) practices in a bid to increase the productivity. The new HRM strategy is the adoption of self-directed teams (SDTs). The strategy began as an experimental strategy on the workforce in Corpus Christi in a bid to raise the production of the company workforce to 95%.
Discretion is usually described as a choice of options or actions one can take in a situation. People exercise discretion everyday. Discretion is like when you want to watch a movie and you are contemplating whether you want to watch a scary movie or a comedy movie. Discretion involves making a judgment and a decision. Although everyone experiences discretion, not everyone makes the same choices or decisions when it comes to discretion.
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.
It is a concealed arrangement made between a testator and the trustee and is made to come into force after death. A justification for ST is the ‘dehors the will’ theory which means the trusts arise outside of the will - a inter vivos trust. Its purpose is to benefit another individual that hasn’t been written in the formal will. The testator will leave property to the trustee under the will with the understanding that they will hold the property as a gift for which they will then later on be expected to pas...
...trust and confidence, which implores for a doctrine of good faith. Hence, although the future of a general principle of good faith in English contract law may not be certain, a judicial movement is slowly gaining momentum to increase the steps towards its realization.
Terence Etherton (2008) – Constructive trusts: a new model for equity and unjust enrichment. Cambridge Law Journal
Current English land law on the co-ownership of interests of land has developed quite a contentious history pertaining to the relationship between the acquisition of rights and the quantification of the shares. In terms of co-ownership, there are huge variances and legal consequences when legal ownership is in one person’s name compared to two. These differences can be seen in various landmark cases which have created precedent and developed refined principles such as Lloyds Bank plc v Rosset and the Stack v Dowden. For the courts, it has often been relatively complex to distinguish between constructive and resulting trusts and to decide on the procedure to be used for the quantification of equitable entitlement once the decision to impute has been established. The quantification of resulting trusts is carefully considered in both, Midland Bank v Cooke and Stack v Snowden. In many co-ownership cases dealing with the acquisition of rights and the quantification of shares, the outcomes aren’t always proportionate. Reasons can include the ambiguities in the identification and changes of common intention and contributions types. In speaking to this issue, Baroness Hale stated in Stack v Dowden that “each case will turn on its own facts” and furthermore elaborated on the conditions for a common intention construct arising. It is furthermore important to critically discuss the repercussions these cases have for the future of co-ownership law to reconcile existing sources of confusion.
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...
trust – where the trust is administered in Mauritius and a majority of the trustees are resident of Mauritius or where the settler of the trust was resident in Mauritius at the time the instrument creating the trust was executed