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University Degree: Equity & Trust Law
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The Fusion Fallacy. When considering the relationship between equitable compensation and common law damages, evidence suggests that there are strong similarities now emerging between the two, and it is difficult to draw meaningful distinctions between th
essay as 'fusion' is not as far-fetched a concept as some jurists would like it to be, and the 'fusion fallacy' is in fact, a fallacy in itself. According to the 'general limb' of the fusion fallacy as proposed by conservatives Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 'foreign concepts' cannot be imported from one jurisdiction into the other.5 More specifically, the first limb of the fusion fallacy which is central to the arguments put forth in this essay implies remedies from one jurisdiction cannot go in support of rights in the other jurisdiction where that was unattainable before
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a duty of confidence imposed on a trustee in respect of particular property and positively enforceable by a person".5 The duties that trustees hold extend to areas such as a general duty to obey and familiarize the "terms of the conditions, history as well as the management of the trust, as well as a total compliance with the terms unless directed otherwise by the courts, the duty to safeguard the trust assets and making sure it meets the conditions of the trust instruments, the duties further extend to the ability to avoid conflict of interests, as well as acting with
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In order to critically assess the way in which the law acts to resolve disputes between cohabitants over right in the family home, an analysis of the historical and current developments of the common law governing this area will be presented.
Hence, in practice, the courts through the application of section 53(2) LPA, use the law of resulting, implied or constructive trusts in an attempt to settle disputes between cohabitants.8 Although this approach provides the flexibility of equity, it is not uncommon to find contradictory judgments throughout the decades. The starting point stems from Dyer v Dyer9 where under the presumption of resulting trust, a trust of legal estate would result in favour of the man who advances the purchase money.10 Thus, a cohabitant who wished to prove that a property purchased in their partner's sole name was intended to be beneficially shared, would have to rebut this presumption of resulting trust.
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"It is submitted that this case [i.e. Pennington v Waine] dangerously undermines the established principles that equity will not act to perfect an imperfect gift nor assist a volunteer. The effectiveness of an alleged transfer of property should not depen
Although some may rebut this argument and claim that the increased flexibility for the court is a good thing, the uncertainty and legal confusion caused by the decision substantially outweighs any possible advantages. Although the principle dates back to Ellison v Ellison (1802)9, it has been cited in many cases as the general rule of law, most notably in Milroy v Lord10, where the transferor (Milroy) had signed a voluntary deed purporting to transfer shares in the Bank of Louisiana to Mr Lord.
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Constitution Of Trusts Problem Question - in order to decide whether Nixon is entitled to sell his farm, we must establish whether he has effectively declared himself trustee.
valid declaration (following the criteria in Milroy v Lord2), he will not be able to reclaim the farm back3, because he will no longer own it for himself, but he will own it as a trustee for the benefit of his son, Ronald. As a result, constitution of trusts need not be discussed. However, certain requirements must be followed in order to decide whether the self-declaration was effective. Firstly, there must be present, clear and irrevocable declaration of trust as in the case of Re Cozens4.
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Equity and Trusts - Scenario based. There are many types of trusts; this assignment is about express trusts. Lord Langdale formulated the tests for three certainties where to have a valid trust there must be the certainty of intention, subject matt
Unless there are other farms under his name, then this certainty will fail. In Re London Wine,12 the claim failed because the 'wine' had not been separated from the main stock, this was not ascertainable.13 'The settlor shall have identified the persons who are to benefit under the trust.'14 We have a beneficiary here, his 'brother Mohammed', under a fixed trust there has to be conceptual certainty and evidential certainty15, we are able to list all the beneficiaries and as well as this documents can be produced to prove it16. Formalities for land are governed by the Law of Property Act 1925.17 S53(1)(b)18 states that a declaration of trust in land, made inter vivos, must be proved in writing19.
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Equity came not to destroy the law but to fulfil it Maitland. Critically discuss this statement in light of the role equity plays in todays legal system.
Equity presupposed the extension of common law at every point. It accepted the common law rules on any question that might arise, but added that something more was necessary, either because the common law rule was inadequate, or because it caused hardship There was no inherent conflict between the doctrines of Equity and Law, their practical working has also been harmonious. However equity has a haphazard origin and is not a complete system. Its working principles are embodied in the so-called theories of Equity. These principles do not cover the whole ground of equity and tend to overlap.
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may occur by an outright transfer by way of gift, by way of a transfer to trustees to hold on trust or by a declaration of trust7. She builds on this view by stating, "It is axiomatic from Turner L.J.'s statement of the law that an unsuccessful attempt to achieve a voluntary settlement by one of the three methods will not be construed as a successful attempt via the other methods."8 She concludes this point by stating that the methods of achieving a settlement by transfer will depend on the type of property involved9.
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He may declare himself as a trustee of the property, holding it for the beneficiaries or he may transfer the property to a third party who will hold it on trust for the intended beneficiaries.9 Once the declaration or transfer has taken place, the trustees then hold the legal title to the property contained with the trust for the beneficiary. They are said to have an interest in the trust property that can be enforced through equity if necessary. Historically the law seemed to very clearly defined and simple to understand.
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The writing is only required as evidence of the declaration (see, Foster v Hale (1798) 3 Ves 696). Thus, the writing of the actual declaration is not necessary as long as there is written evidence of it (see, Deg v Deg (1727) 2 Wms 412; Hill v Hill  Ch 231) which contains all the material terms of the trust (i.e. the beneficiaries' names, the subject matter and the nature of the trust) (see, Hawkins v Price  Ch 645; Smith v Matthews (1861)
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This problem arises where a law firm may have more than one client and raises the 'duty of undivided loyalty' principle that a solicitor owes his client.7 It is imperative to understand why we need to pay special heed to conflicts of interest rules when it comes to law firms before delving into the effects and consequences the rules have on law firms. Over the past two decades there have been major changes within the legal profession that have led the issue of conflicts of interest to cause a stir.
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Critically assess the view that equity remains a separate set of rules to those of the common law despite the enactment of the Judicature Acts.
It also illustrates supremacy of Community law, since a court is bound to set aside national law if it conflicts with Community law.4 A Member State cannot enforce a Directive against an individual who has breached Community law, not national law in criminal proceedings, "Interpreting the relevant rules of its own national law reaches a limit where such an interpretation leads to... liability in criminal law of persons who act in contravention of that Directive's provisions." Per Advocate General Elmer in Luciano Arcaro.5 It is only when a Directive has been fully and correctly implemented that Community obligations may be directly imposed on an individual.
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can dispose of his beneficial interest subject to any writing requirements s23C(1) Conveyancing Act 1919 (NSW) 3. has the equitable remedy of tracing with third parties 4. can assert priority except for a bona fide purchaser of the legal estate buying for value, without notice of beneficiary's equitable interest See AG v Bi-Phosphated (1879) 11 Ch D 327 The right of a beneficiary in an unadministered estate Does the interest from date of death to the date of grant have a proprietary nature, particularly for tax purposes? The Livingstone Litigation Livingston v Commissioner of Stamp Duties (Qld)
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become part of the general assets of the borrower and should be used for some specific purpose then a trust will be imposed if that purpose fails. Precatory Trusts The words used to express the intention to create a trust must be clear and sometimes the court is called upon to determine whether or not certain words sufficiently achieve this. This usually occurs after the person allegedly creating the trust has died. West v Federal Commissioner of Taxation (1949) - the words 'it is my will and desire' were held to be binding upon the testator's daughter. Re Alston (1955)
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Precatory words are not conclusive either way. Meaning that the intention of the settlor must be clear and that he intended the trustee to actually be a trustee and not take the trust absolute. Reasons for certainty requirements property is correctly identified and is dealt with in accordance with the wishes of the settlor. The shift from property and monies has changed over the 200 years when the first trusts were introduced exchanging family arrangements. Trusts have to be investigated because some trusts maybe fraudulent. A vested interest in property is needed for the trustee to carry out the trust. This had lead to the certainty requirements.
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“The Insolvency Act 1986 gives the court the power to set aside trusts which are created in an attempt to elude personal bankruptcy or corporate insolvency. Similarly, the courts have refused to recognise ‘sham’ trusts where the trust is
I will demonstrate that the validity of a Quistclose style trust is determined by if or not the judge believes it to be the fair and honest thing to do or not. It is very important to understand what a trust is because a Quistclose trust is not a separate entity in law which judges have developed it is just an ordinary trust which has been given an informal name therefore the same laws apply to Quistclose trusts as to any other trust.
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Legal ownership vested in trustees must be balanced by identifiable equitable ownership. Critically discuss this statement and the difficulties inherent in it in relation to the interests of beneficiaries under discretionary trus
They differ, however, from administrative powers in that there is no duty to exercise them impartially as between beneficiaries with different interests"ii This shows that the difference between powers and discretionary trusts, as stated above, is that the trustees do not have to act impartially, but rather act in a way they think best, rather than simply acting within rules as set by the testator. The beneficiary of a trust is defined as "the owner of the beneficial interest in the trust property"iii This means that although the trustee has the discretion as to how the trust property is apportioned,
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It must be said with certainty that 'any given postulant' (individual) is or is not a member of the class 'avid science fiction fans.' This must apply to all individuals. It can inferred however that it maybe uncertain who is an avid science fiction fan. How much interest is needed to become an avid fan? E.g. is it essential for potential beneficiaries to have watched star wars, or attended a majority of science fiction events. It would be very hard to distinguish 'who is and who is not' an avid fan.
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did separate between the legal and equitable title, which hints toward to a creation of a trust. This is an express trust as it has been created in accordance with the express intention of Brad (The settlor). It could also be classified further as a fixed trust as Brad has specified in clause 7 of the will the beneficiaries and their interests. Therefore, T&T (The appointed trustees) have no duty to select the beneficiaries or quantify the interest, as Brad has already declared the interests that must be enjoyed by the beneficiaries. "The essence of the express trust is the fiduciary relationship between the beneficiary and a trustee who is vested with the trust property; it is
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These requirements, known as the three certainties, were classified by Lord Lonsdale in the case of Knight v Knight. These are certainty of intention, (the intention to create a trust is clear), certainty of subject matter (the property intended to be the subject of the trust is identifiable), and certainty of object (the beneficiaries of the trust are clearly identified). Secondly, it is important to consider the formalities for Sally (the settler) to transfer the legal estate in the trust property to Tony (the trustee). As the property is a voluntary settlement - in other words the beneficiaries are providing no consideration for the property- the rule in Milroy v Lord will apply.
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Furthermore it becomes clear that 'the words must be imperative'.5 This is evident in the case of Paul-v- Constance  1 ALL ER 195, where the phrase 'the money is as much yours as it is mine' was accepted by the court as sufficient evidence that he regarded himself as holding the account as trustee for himself and his wife.6 Additionally a further difficulty arises where the settler uses precatory words, which are expressions of hope and desire that the donee will use the property in a certain way.
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transfers property to another (trustee) is legally obliged to look after or manage the property for third parties (benificiaries). Referring to the above definition of Trust just offered, many terms of the definition offered are abstract or not matters of ordinary usage. Alternatively there are two ways in which a trust can arise, either by way of conscious creation of these obligations or because of some other legally significant matters are present. Effectively there are two main branches of trusts, 'Inter Vivos' trust and a 'Testamentary' trust.
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Critically evaluate the doctrine of certainty in the creation of a trust. To what extent would you agree that the courts have been faithful to this doctrine in their development of the trust?"
The maxim, 'Equity looks to intent, not form'2 fully applies to declarations of trust. No particular formula is necessary, not even the use of the word 'trust'. Neither is it necessary for the settlor to know that, technically, that is what he is doing. The attitude of the courts to the requirement for Certainty of Intention has changed over time. Before the middle of the 19th Century, the Courts tended to take the view that any expression of desire or hope or the like on the part of the testator was imperative and created a 'binding trust'.
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