Equity and Trusts (Longman Law Series)

Cover
Half Title Page
Title page
Copyright Page
Brief Contents
Contents
Preface
Table of cases
Table of statutes
Part I Introduction to equity and trusts
	1 Introduction to equity
		Learning objectives
		Setting the scene: Equity and role of unconscionability
		Introduction
		The common law
		The origins and development of equity
		Equity and the role of conscience
		Unconscionability, fairness and the role of context
		The Judicature Acts 1873 and 1875 and the relationship  between law and equity
		Fusion fallacy
		Equitable maxims
		Nature of proprietary rights in law and in equity
		Equity and social reform
		Conclusion
		Moot points
		Further reading
	2 The trust concept
		Learning objectives
		Setting the scene: Hambro and Others v  The Duke of Marlborough and Others [1994] 3 WLR  341
		Introduction
		Definition
		The key features of the trust
		Trust as a product of fragmentation of ownership
		Historical foundations of the trust
		Trusts and law reform
		Classification of trusts
		The operation of section 33(1) Trustee Act 1925: protective trusts
		The contemporary significance of trusts
		Some key players and concepts in the trust relationship
		Conclusion
		Moot points
		Further reading
	3 The trust distinguished from other legal concepts
		Learning objectives
		Setting the scene: Re Mills [1930] 1 Ch. 654
		Introduction
		Contract
		Agency
		Bailment
		Interests under wills and administration
		Debts
		Powers: general observations
		Different types of power of appointment
		Exercising a power of appointment
		Excessive or fraudulent exercise of a power
		Consequences of not exercising a power of appointment
		Conclusion
		Case study
		Moot points
		Further reading
Part II Creating the trust relationship
	4 The three certainties
		Learning objectives
		Setting the scene: Mcphail v Doulton  [1971] AC 424
		Introduction
		The effect of uncertainty
		The rationale for certainty
		Certainty of intention
		Certainty of subject matter
		Certainty of objects: general observations
		The constituent elements of certainty of objects
		The test of certainty of objects for a fixed trust
		The test of certainty of objects for a discretionary trust
		Conclusion
		Case study
		Moot points
		Further reading
	5 Formalities
		Learning objectives
		Setting the scene: The Vandervell  Saga 1958–1965
		Introduction
		Testamentary trusts
		Inter vivos trusts
		Declarations of trust
		Dispositions of equitable interests
		Conclusion
		Case studies
		Moot points
		Further reading
	6 Constitution of trusts
		Learning objectives
		Setting the scene: Pennington v Waine [2002]  1 WLR  2075
		Introduction
		Completely constituted and incompletely constituted trusts
		The Milroy v Lord principles of conferring a  benefit on a donee
		Declaration of trust
		Transfer to trustees
		Equity will not strive officiously to defeat a gift
		Enforcing an incompletely constituted trust
		Exceptions to the rule that equity will not assist a volunteer
		Proprietary estoppel
		Conclusion
		Case studies
		Moot points
		Further reading
	7 Secret trusts and mutual wills
		Learning objectives
		Setting the scene: Re Boyes (1884) 26  Ch D  531
		Introduction
		Succession
		Definition of a secret trust
		The theoretical justification of secret trusts
		Requirements for a fully secret trust
		Requirements for a half-secret trust
		Predecease of the secret beneficiary
		Predecease of the secret trustee
		Can a secret trustee derive a benefit  from the secret trust?
		How are secret trusts classified?
		Mutual wills
		Conclusion
		Case study
		Moot points
		Further reading
	8 The beneficiary principle
		Learning objectives
		Setting the scene: Re Astor’s Settlement Trusts [1952]  Ch 534
		Introduction
		Non-charitable purpose trusts and charitable trusts
		Is the trust a purpose trust?
		The beneficiary principle stated
		Rationale behind the principle
		The Re Denley principle: a situation outside the beneficiary principle
		The anomalous cases
		The construction of gifts to unincorporated associations
		Reform
		Conclusion
		Case study
		Moot points
		Further reading
	9 Illegality and public policy
		Learning objectives
		Setting the scene: Blathwayt v Baron Cawley  [1976] AC 397
		Introduction
		Freedom of disposition and public policy
		Trusts contrary to public policy
		Illegality
		Trusts which contravene the perpetuity rules
		Trusts to safeguard property from creditors
		Trusts defeating the rights of the family and dependants
		Trusts defeating the rights of a spouse
		The Law Commission’s consultation paper
		Conclusion
		Case study
		Moot points
		Further reading
Part III Trusts implied by law
	10 Resulting trusts, part I: Nature of resulting trusts
		Learning objectives
		Setting the scene: When does a resulting trust arise?
		Introduction
		Theories explaining the imposition of a resulting trust
		The ‘beneficial vacuum’ theory
		Resulting trusts and a restitutionary justification
		Resulting trusts and the role of intentions
		Automatic and presumed resulting trusts
		Westdeutsche: the prevailing view
		Conclusion
		Moot points
		Further reading
	11 Resulting trusts, part II: Imposing resulting trusts
		Learning objectives
		Setting the scene: Problems requiring a resulting trust solution
		Introduction
		Failure of the trust
		Resulting trusts and Quistclose trusts
		Unexhausted funds
		Voluntary conveyance in the name of another
		Purchase in the name of another
		Rebutting the presumption of a resulting trust
		Rebutting the presumptions and evidential matters
		Resulting trusts and the family home
		Conclusion
		Case studies
		Moot points
		Further reading
	12 Constructive trusts, part I: Nature of constructive trusts
		Learning objectives
		Setting the scene: Why do we impose constructive trusts?
		Introduction
		When will a constructive trust be imposed?
		Institutional and remedial constructive trusts
		An institutional constructive trust
		A remedial constructive trust
		Does English law recognise a remedial constructive trust?
		Consequences of the imposition of a constructive trust
		Conclusion
		Moot points
		Further reading
	13 Constructive trusts, part II: Imposing constructive trusts
		Learning objectives
		Setting the scene: Problems requiring a constructive trust solution
		Introduction
		Acquisition of property as a result of unlawful conduct
		Unauthorised profits gained by a fiduciary
		Constructive trusts and the family home
		Miscellaneous situations giving rise to a constructive trust
		Conclusion
		Case studies
		Moot points
		Further reading
	14 Constructive trusts, part III: Imposing constructive  trusts – intermeddling with trust property
		Learning objectives
		Setting the scene: Royal Brunei v Tan [1995] 2 AC  378
		Introduction
		Nature of liability for knowing assistance
		Requisites for liability for knowing assistance
		Receipt of trust property in breach of trust
		Significance of knowing receipt liability and requisites for liability
		Conclusion
		Case study
		Moot points
		Further reading
Part IV The administration of trusts
	15 Introduction to trusteeship appointment, removal and retirement
		Learning objectives
		Setting the scene: Klug v Klug [1918]  2 Ch  67
		Introduction
		Capacity and numbers
		Appointment of initial trustees
		Appointment of new trustees
		The retirement of trustees
		Removal of a trustee
		Special types of trustees
		Vesting of the trust property in trustees
		Conducting the office of trusteeship
		Control of trustees’ discretions
		Do trustees need to give reasons?
		Conclusion
		Case study
		Moot points
		Further reading
	16 Investment of trust funds
		Learning objectives
		Setting the scene: Nestlé v National Westminster Bank plc [1993] 1 WLR  1260
		Introduction
		The duty of investment and the power of investment
		The objectives of trust investment
		Historical note and contemporary trends in trustee investment
		Common law and statutory duties when investing
		Express powers of investment
		Statutory power of investment
		Purchase of land as an investment
		Mortgages of land as an investment
		Enlargement of investment powers: the return of the Re Kolb principle
		The duty to act fairly amongst the beneficiaries
		Conclusion
		Case studies
		Moot points
		Further reading
	17 Fiduciary nature of trusteeship
		Learning objectives
		Setting the scene: Keech v Sandford (1726) Sel. Cas. Ch. 61
		Introduction
		Defining fiduciary relationships
		The purchase of trust property
		Trustee remuneration
		Incidental profits
		Remedies for breach of fiduciary duty
		Conclusion
		Case study
		Moot points
		Further reading
	18 Powers of trustees
		Learning objectives
		Setting the scene: Re Pauling’s Settlement Trusts [1964] Ch  303
		Introduction
		The power to delegate
		The power of maintenance
		The power of advancement
		Miscellaneous powers of trustees
		Conclusion
		Case studies
		Moot points
		Further reading
	19 Variation of trusts
		Learning objectives
		Setting the scene: Re Weston’s Settlements [1969] 1 Ch 233
		Introduction
		The rule in Saunders v Vautier
		The court’s inherent jurisdiction to order variation
		Statutory provisions
		The Variation of Trusts Act 1958
		Conclusion
		Moot points
		Further reading
Part V Breach of trust and remedies
	20 Breach of trust and personal remedies
		Learning objectives
		Setting the scene: Target Holdings v Redferns [1996] AC 421
		Introduction
		The personal liability of the trustee
		Liability for co-trustees
		Joint liability, contribution and indemnity
		Established principles when assessing liability
		Defences in a personal claim
		Limitation of actions
		Conclusion
		Case study
		Moot points
		Further reading
	21 Tracing and a proprietary claim
		Learning objectives
		Setting the scene: Re Diplock [1948] Ch 465
		Introduction
		Proprietary claims and tracing
		Tracing and proprietary claims at common law
		Tracing and proprietary claims in equity
		Conclusion
		Case study
		Moot points
		Further reading
Part VI Charities and charitable trusts
	22 Charities and charitable trusts
		Learning objectives
		Setting the scene: IRC v McMullen [1981] AC 1 House of Lords
		Introduction
		A historical note
		The structure of charity
		The Charities Act 2006 and the Charities Act 2011
		Differences between charitable trusts and private trusts
		Regulation and supervision of charities
		Requirements for a charitable trust
		The definition of charity
		Charitable purposes under the Charities Act 2011
		Recreational charities
		Public benefit
		Exclusively charitable
		Trusts with political purposes
		Conclusion
		Case studies
		Moot points
		Further reading
	23 The cy-près doctrine
		Learning objectives
		Setting the scene: Re Rymer [1895] 1 Ch 19 and Re Slevin [1891] 2 Ch 236
		Introduction
		The court’s inherent jurisdiction to apply cy-près
		A general charitable intent
		Initial failure
		Subsequent failure
		The Charities Act 1993
		The Charities Act 2011
		Charity donations and unidentifiable donors
		Cy-près schemes
		Conclusion
		Case study
		Moot points
		Further reading
Index