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University Degree: Equity & Trust Law
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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)
- Word count: 1984
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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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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Very often, buyers resell goods purchases to others. A retention of title clause has to operate in conjunction with the doctrine of equitable tracing to allow the original seller a proprietary right to the proceeds of the second sale. It was established here that this arrangement was conditional upon the original buyer's accounting for the proceeds of sale. This shows the potentially far reaching impact on commercial law of retention of title clauses.3 Reason for the lack of success of retention of title clauses (i) Unfairness to general creditors of the buyers The courts have been reluctant to enforce retention of title clauses because they operate in effect as a security interest which does not require registration.
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Also, trusts for sports outside educational facilities and the services were formerly considered not charitable unless the came within the scope of the Recreational Charities Act 1958. Under this heading, the provision of facilities for recreation or other leisure-time occupation is charitable if its in the interest of social welfare. This requirement could be established under s1(1) of the Act. This was applied by the case of Guild V IRC 6and the courts upheld that a gift for the benefit of a public sports centre was held charitable.
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In his will, Colin leaves 100,000 to the Hillingbridge Tennis Club, an unincorporated association, to enable it to build an extension to its existing pavilion. The money is paid to Morris, the treasurer of the club, who puts it into a specially opened
It was presumed because they would be entitled to the surplus, they would not want the fund to be spent frivolously, because this will affect the amount they ultimately receive as indirect beneficiaries. However because these are anomalous cases the courts do not always apply the same principles. 5For instance in RE DEAN6 the courts allowed the trust even though it did not express a residue estate. However because this overlooks the beneficiary principle, it is unlikely that courts will apply such a badly decided case.
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consider whether the test for certainty of objects applicable to fixed and discretionary trust is reliable
However where the beneficiaries are of a wide class conceptual uncertainties commonly arise and it would therefore require interpretation. Such a situation arose in Broadway3 the trust was void for uncertainty as the whole range of objects could not be ascertained. It is generally accepted that the terms in a fixed trust are precise enough to comprise a complete list test. However where the testator aims to give to the benefit of a large number of people a discretionary trust is most useful. This is because no individual potential beneficiary has an interest on the fund until the trustees' discretion is exercise.
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If any of these are missing then there cannot be a joint tenancy. Joint tenants share possession of the land, together having one interest in the land, deriving the one title to the property at the same time. Estate management 6th edition, Card, Murdoch and Murdoch, Pg 430 * Unity of possession means that all joint tenants have equal rights to the land. No one joint tenant can be excluded * Unity of interest is when each co owner is entitled to the entire interest in the property. Each tenants interests must therefore be equal.
- Word count: 1955
Question 1: Critically evaluate the extentto which the Trusts of Land and Appointment of Trustees Act 1996 has broughtabout improvements in the law.
Power for the beneficiary and trustee has increased. 4. The power of the courts has been extended. Strict settlements of land will be gradually phased out due to TOLATA under section 2 which prevents the creation of new strict settlements. This is so, as strict settlement of land was originally created to keep land within the family. However, that purpose is no longer valid as the society and economy of this country have outgrown it. Settlements that was established before TOLATA will continue under the Settled Land ACT 1925 (SLA).
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However if one follows Re Niyazis, one could say the gift would succeed but be at the very border line. However this matter is up to the courts discretion. As the trust has no religious basis it would fail under the advancement of religion. One could then consider the advancement of education. Rigby LJ stated in Re Macduff3, that a gift for the advancement of education 'is not in itself a charitable object unless it be combined with teaching or education.'
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be so directed as to lead to something which will pass into the store of educational material, or so as to improve the sum of communicable knowledge in an area which education may cover...education in this last context extending to the formulation of literary taste and appreciation''2 My only concern with regards to your application is in relation to whether your organisation will be considered charitable under one of the above catagories. Also, I am concerned that your organisation is very narrow in its intended focus group.
- Word count: 1850
'The recognised exceptions are so limited, and the effects of the Contracts Act 1999 are so minimal, that the traditional rule that Equity will not assist a volunteer remains virtually intact - is this statement an accurate assessment of the law regarding
The first of these was that the gift or donation must have been made in contemplation, though not necessarily in expectation of death. Smallacombe v Elder's Trustee & Executor Co Ltd3 recognised that this contemplation must be something more specific than a realisation of the general truth that we are all going to die eventually; "the donor must have been contemplating a comparatively early death from some cause or another". In Wilkes v Allington4 it was established that it is irrelevant if the donor dies from different causes.
- Word count: 1876
Alfonso's will contains, inter alia, various dispositions which are capable of resulting in various equitable concepts such as Gifts, Power of Appointments or more importantly Trusts.
Courts will decide on the matter of which words are precatory4 words and which are sufficient to create a trust on a case to case basis, however recently precatory words have been recognised as not creating a trust. If this is the case then the trust property would go to the trustee beneficially. This requirement is followed up by the certainty of subject matter, which requires that the trust property must be sufficiently certain in its definition, the subject matter and how much of it is part of the trust must be defined, if it is not sufficiently certain then the donee takes the trust property as his own.
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Is there a contradiction between the duty of a trustee to act personally in the exercise of discretion and the power of trustee to delegate? In what circumstances should a trustee be held liable where the delegates harm the trust?
The case however concerned the employment of a broker and not a delegation to him of the duty of the trustee to invest trust funds. Even though common law did not allow delegation there were statutory provisions to allow it. S. 25 of the Trustee Act 1925 made it possible to delegate by powers of attorney, professional drafting of an instrument also enabled delegation. So why was delegation not seen as controversial and contrary to the personal duties of trustees?
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and she paid �200 generously until her death and she continued to do so the time of her death. * Nonetheless the release of debt was not legally effective since it was not given under seal and no consideration had moved from Strong Bird. * Bird was appointed as her sole executor and the step mother died. * The next of kin claimed that the defendant still owed the balance of her estate. * Held : Appointment of Bird as executor released the debt.
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This will ensure that the trustee is aware of the precise scope of his or her duties under the trust. Thirdly, there must be certainty of objects in order that the trustee should know in whose favour he or she must perform the trust, so identifying who may apply to the court should the trustee fail in this duty. The precise requirements of certainty of objects vary for different kinds of trusts and powers but, in all cases, a settlor's or testator's failure to define their objects with sufficient certainty will mean that the property is held on resulting trust for the settlor or residuary legatees as in the McPhail v.
- Word count: 1597
> 1963 - The trustees (Edwin Baden, Peter Duke Doulton, Sidney Kindler and Alexander Laing Pearson, as plaintiff's, tried to discover whether the trust was valid or void for uncertainty. > The defendants to the summons (the Executors) were Arthur Frederick Smith, Robert Thomas Mitchell McPhail, Mrs Enid May Baden, Raymond Rostron Baden and Joseph Frederick Norris. > Goff J held: Provisions of clause 9(a) constituted a power not a trust and so were valid. > The Court of Appeal upheld this decision but argued that the wrong test had been used for determining the validity of a power.
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The courts were quite restrained in their ability to administer a trust, if they did act then their decisions had to be justiciable. However for this to happen it was necessary for the Settlor to be very clear on what criteria should be used if it became necessary for the court to execute the trust. Therefore from this rationale it is clear that a court cannot be expected to act where a choice needs to be made between two competing claims.
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The transfer must be with the intention of giving the property; ii) It must be clear that the property was handed over in contemplation of a real possibility of death, and some specific focus on the possibility of death must be shown; and, iii) The donor must have effectively parted with dominion over the subject matter of the gift. The test is whether the donor has handed over such documents as constitute "the essential indicia or evidence of title, possession or production of which entitles the possessor to the property purported to be given".2 If we apply these conditions to the facts, it can be argued that when Kenneth addresses an envelope
- Word count: 1523