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 .
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...
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...he and other latest cases that some form of flexibility is developing in the kinds of interests or rights that equity is capable of providing.
Overall therefore, the court considers Milroy as good and valid law. The principle established in Milroy has been the focal point of judicial decisions and the major influence on the attitude of the judiciary. The courts, no matter how onerous a situation may be or the trend in the development of the law, they seek to ensure that the Milroy principle is not violated, thus its re-emphasis in Re Rose . Over the years, some form of flexibility has been seen by the courts towards the enforceability of imperfect gifts. However, despite the caveats characteristic of Re Rose , the courts still considers the case to be good authority proved by its subsequent application in Mascall v Mascall and its approval in Vandervell v IRC .
The court used previous cases such as Sabah Yazgi v Permanent Custodians Limited [2007] to substantiate their decision “It was common ground that because of the forgery, the personal covenant contained in the mortgage was not enforceable”
d by agreement in the court of appeals. By applying principles to the conflicting laws, the judge is able to make the greatest social advancements by both punishing for actions causing harm and also giving hint that his honest intentions did not go unnoticed and such intentions should be upheld in society. Looking at the case R.V.Machekequonabe, it is a prime example of conflicting rules. It is always difficult to decide which rule should be followed and which should be rejected, especially in cases where cultural upbringing plays such a major role.
Question Presented: Petitioner Giridar C. Sekhar was convicted of extortion under the federal law for potentially exposing an extramarital affair unless the general counsel for the state comptroller recommended that the state pension fund invest in a fund managed by Sekhar’s company. The meaning of the word “property” would be determined by the courts under the federal extortion law. They would also decide whether the General Counsel had recommended the “property” and if it could be subject to extortion by the federal law. The petitioner had argued for a narrow of the meaning or definition of the word “Property”. He wished that it were brought to the meaning of something that is of value and that is transferable.
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.
The contradictory outcomes of cases presenting very similar facts to the court leads some jurists to cry out for reform and to denounce the defects in the present common law rules. Some, are supportive of the implementation of a statutory obligation to make reparation for wrongfully caused mental
Since all three trusts contain a spendthrift provision, most creditors of a beneficiary cannot invade the trust and remove property. Cindy’s concern about her husband being able to receive a portion of her interest upon their divorce is only warranted if he receives either a child support payment or spousal maintenance payment order. If her husband holds either of these types of judgments, he will be able to attach any present or future distribution that
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 law of contract in many legal systems requires that parties should act in good faith. English law refuses to impose such a general doctrine of good faith in the field of contract law. However, despite not recognizing the principle, English contract law is still influenced by notions of good faith. As Lord Bingham affirmed, the law has developed numerous piecemeal solutions in response to problems of unfairness. This essay will seek to examine the current and future state of good faith in English contract law.
The judicial statement of Roskill LJ observed in The Albazero [1977] AC774 held plenty of arguments in modern world today. To reach an extent of agree or disagree the judicial statement, it should be critically analysed from a legal perspective:
ACOSS has since a long time ago contended for charge change of private trusts to handle their utilization for imposing tax avoidance and evasion. With moves to change excessively liberal tax reductions in superannuation and lodging long late and welcome, the time has come to likewise handle private trusts.
Crucial factors that should be considered when forming a GRATs and all subsequent trusts discussed in this paper is the age & physical health of the grantor, the grantor’s financial position upon formation of a trust, interest rates and the value of all of the assets that will be transferred into the trust.
In common law the materiality test is known as the Prudent Insurer Test, which is referred to a fact is ...
Except for charitable trusts, every trusts must satisfy three certainties of intention, subject matter and objects. Trusts that do not have a human beneficiary are generally void. The beneficiary principle requires a valid trust to have human beneficiaries. However, charitable purpose trusts are not subject to the beneficiary principle. To be a valid charitable trust, it must be for a recognized charitable purpose, for the public benefit and for exclusively charitable purposes. Charitable trust is exempt from the rule against perpetuities. For non-charitable purpose trust, it is a type of trust which has no beneficiaries but exists for advancing some non-charitable purpose of some kind and it needs to comply with the perpetuity rules. There
[7] Cavendish Lawcards Series (2002) Company Law (3rd edn), p.15 [8] [1976] 3 All ER 462, CA. [9] Griffin, S. (1996) Company Law Fundamental Principles (2nd edn), p.19 [10] [1990] Ch 433. [11] Lecture notes [12] Lecture notes [13] [1939] 4 All ER 116.
... concluded on this basis that the court was not bound to apply the 'precedential strait-jacket' of Yerkey v Jones as a legal principle, He disagreed with the “equitable presumption ” expressed by Dixon J that catered for only married women, he instead proposed a broader principle should exist not confined to one group. Despite his judgment, The Majority of the High Court judges endorsed the principle and applied it to the case to reach a decision in favour of Mrs Garcia, and her entitlement to equitable relief. The majority found that because of the marked number of women in relationships with disparities between parties, Yerkey v Jones as an authority should be considered. The decision in Garcia provides High Court endorsement for the special equity, which will provide legality to protect those within a domestic relationship, who take on commercial matters.