What is the best rationale or explanation for the recognition and enforcement of secret trusts? Discuss.
The doctrine of secret trusts (STs) have long been upheld by the courts, however, the basis for doing so is unclear and has been a strong area of contention by academics. The two principal suggestions are that they arise to prevent fraud on the part of the trustee – ‘the Fraud Theory’ and that they arise/operate outside the Will so as not to invoke the testamentary formality rules under the Wills Act 1837 (WA) – ‘the Dehors the Will Theory’. Firstly, this essay through the analysis of leading cases and academic arguments, will show well founded reasoning for the doctrine of ST. Then, it will assess which theory is the best explanation for
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According to s. 9 Wills Act 1837 –, “No Will shall be valid unless it is in writing, signed by the testator and attested by two witnesses.”
Nevertheless, ST is the exception to the formalities of the testamentary disposition as it does not apply the formality requirement of the Wills Act. Richard Spearman QC in Freud defined STs as “providing or the testator a means of creating a trust without publicly identifying the beneficiary and/or the terms if the trust.”
There are two types of ST one is fully secret trust (FST) and another is half secret trust (HST). In FST on the face of the Will, it appears to be an absolute gift, whereas for HST, the Will makes clear the existence of the trusts, consequently, as in Ottaway v Norman, the ‘beneficiary’ is not an absolute beneficiary, but actually holds the property on some kind of trust for another unknown beneficiary.
Enforcement of STs
Wills Act does not enforce ST, however, equitable jurisdiction recognises ST. The whole basis of an ST as I understand it from Re Snowden, is that they operate outside the Will, changing nothing written in it and allowing it to operate according to its tenor but then fastening a trust to the
The Incorporated Council of Law Reporting for England & Wales. - Counsel [24] See footnote 22 – but page 61 [25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics. [26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales [27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31 [28] See footnote 22 but page 64
...am R, Incompletely constituted trusts: Covenants to settle property (Equity & Trusts: Text, Cases, and Materials 2013).
The purpose of will and inheritance law is to enable individuals to legally set out how they want their assets to be distributed in the event of their death, will and inheritance law also sets out how the estate of an individual who dies intestate (without a will) will be distributed. All law relating to will and inheritance law are part of either the Wills act 1997 (Vic)[1], which includes the requirements to make a legally recognised will or the Administration and probate act 1958 (Vic)[6], which includes the rules for the distribution of the estate of an individual who dies intestate. Any issues regarding disputing of wills are civil matters and are between private individuals. Case study Williams v. Ryan [2] (Supreme Court of Victoria 4/9/1998) The will of the late EILEEN ELSIE RYAN is being contested.
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
Secret trust evolved as a response act to the Wills Act 1837 and was originally created to prevent fraud. As the House of Lords held that equity will not allow a statute to be used as an instrument of fraud by the secret trustee .
Trustees are fiduciaries with a trust relationship and confidence towards another, Millet J in Bristol West Building v Mothew states that fiduciary duties would be imposed on a person who holds a position on trust, confidence and influence. While there are established categories of fiduciary e.g. trustee/beneficiary and solicitor/client, the categories are not closed. Thus, Fridman found that an agent is a fiduciary because whether he is paid or acts gratuitously, he has the power to alter the legal relation of the principal. This essay will discuss the duties of a fiduciary, examining case laws and academic arguments.
Terms and Laws have gradually change overtime dealing with different situations and economic troubles in the world in general. So then dealing with these issues the workplace has become more complex with little or no rights to privacy. Privacy briefly explained is a person’s right to choose whether or not to withhold information they feel is dear to them. If this something will not hurt the business, or its party members then it should be kept private. All employees always should have rights to privacy in the workplace. Five main points dealing with privacy in public/private structured businesses are background checks, respect of off duty activities/leisure, drug testing, workplace search, and monitoring of workplace activity. Coming to a conclusion on privacy, are there any limits to which employers have limitations to intrusion, dominance on the employee’s behavior, and properties.
The legal issue of constitution of trusts is very important, judicial decisions over the years on cases where trusts were not properly constituted indicates that constitution of trusts could be quite complex and must be very cautiously done by a property owner as a simple factor could make his trust void. An express trust is completely constituted either by effectively transferring property to trustees or by effectively declaring a trust. In case of personal property, the declaration of the trust may be put in writing; however, equity will not perfect an imperfect gift. It is only when the trust is constituted that it is binding on the settlor. The long-standing idea that equity will not perfect an imperfect gift can be traced back to the 19th century cases of Ellison v Ellison and Milroy v Lord , and was further emphasized in the 20th century in the case of Re Fry .
In the ever-changing world today, companies are continuing to innovate so they can maintain a competitive advantage. In order to keep their ideas secret, companies use legal documents called non-disclosure agreements or confidentiality agreements. Thousands of companies sign these contracts with other businesses and their own employees to ensure that current projects, innovative ideas, or new products are undisclosed from competitors. NDAs provide a level of protection and comfort when disclosing information to another party.
The Act allows negligence as the sole ground unlike common law which required the claimant to establish ‘fraud’ even if negligence existed. It is believed that the ‘d...
...d acts tot heir detriment on the basis of trust. But there are some contradicting grounds between the two. Constructive trust is generally created by the action of the parties whereas a court order is mandatory in proprietary estoppel. Furthermore, the nature of constructive trust is to identify the true beneficial owner of the land and it reflects the nature of a person's interest but the court makes the minimum award which are essential to proceed for justice under proprietary estoppel, which allows the courts to provide such remedy fits to the facts of the case and the remedy is not necessarily be similar to the share in the beneficial ownership of the land to a monetary award.
Confidentiality is defined as the protection of personal information. It means keeping a client’s information between the health care providers and the client. Every single patient has the right to privacy regarding their personal information from being released to anyone outside of their health care providers. Health care providers have a legal and ethical responsibility to protect all information regarding patients by not disclosing their information to anyone without their written consent from the patient.
As society has progressed, there have been many new innovative and unbelievable developments in almost all aspects of life that have ultimately created an impact. More specifically, advancements in technology have rather had a much larger and intense impact on society as it continues to grow. Technology has allowed for many great and useful applications that has made life much easier and convenient. However, many aspects of technology have given a rise to a number of social and ethical issues, causing numerous debates and concerns. One of the more prominent concerns deals with the issue of privacy rights.
What is trust? Is trust essential for the way we live our everyday life? Trust is a quality or condition of being trustworthy; loyal; reliable. I think trust is an essential way of life because you cannot make a relationship, friendship, a business, or an organization if there is no foundation. Part of that foundation is trust and loyalty because you should be able to depend, rely, and trust others that they will do exactly what is right for them and you. Trust can be broken so quick, it is scary, because once trust is broken it is a lot harder to gain back then when you first gained trust in someone. This relates to my life because my trust with my dad was alerted going into my freshman year.
Honesty and integrity are very important in the medical field. We as healthcare workers are given such trust and responsibility. We should always strive to do our best and when faced with tough situations. When we don't always know what to do or the proper way to react we should always be honest. Let our superiors know what is going on and ask for advice when we need to. This would show that we are honest. When we come into contact with patients they rely on us to do the right thing and always perform our job with integrity. Often people’s lives are in our hands. We have to care about the patient and care about our job in order to continue to provide quality care. If someone hates their job they are not going to give their best in every way they can. The medical field is not a place for that person.