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.
Introduction In England and Wales, the courts have wide and flexible statutory powers to equitably divide matrimonial property upon breakdown of a marriage.1 Nevertheless, such statutory power does not exist for cohabitants2 and therefore if the relationship breakdown, significant legal difficulties may arise as to who owns what in respect of the family home. This phenomenon attracts concern from the society as the number of cohabiting couples has been surged from merely 2.1 million in 20013 up to an estimation of 4.5 million adults in 2007.4 This can be problematic as the current law has always been criticised as being complex, uncertain and expensive to rely on.5 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. The Legal Framework Section 53(1)(b) of the Law of Property Act 1925 ("LPA") requires that any declaration of trust in respect of land or any interest therein to be manifested and proved by writing. However, difficulties occur when there is no express trust.6 Very often cohabitants would not formally set out their respective beneficial interests in the property,7 merely informal arrangement might be found. Hence, in practice, the courts through the application of section
Scientology and Charitable Status
. Introduction In today's society, charitable status is of significant importance. The controversial Church of Scientology, founded by the science-fiction writer L. Ron Hubbard, has long craved charitable status in the United Kingdom but was turned down by the Charity Commission in 1999. The Times article titled 'Scientologists set to cash in on tax break'1 has raised some interesting legal and policy issues related to the charitable status of religious organisations since the enactment of the 2006 Charities Act. On the surface, the article raises practical issues of fiscal privileges but the article also provides an opportunity to discuss some broader policy considerations related with religious charities and how the Charities Act has made some subtle but significant changes to how they are treated. In this essay I intend to examine the legal impact of the changes the Charities Act 2006 has had on religious charitable status and on the Church of Scientology's bid for charitable status. In addition, I will consider some of the broader policy issues rising from the changes from the 2006 Act and the debate surrounding religious charities more generally. But before discussing the legal and policy implication of charitable status of religious organisation, first it is appropriate to address the benefits of charitable status. 2. Advantages of Charitable Status Much of charities
Trust Law Reform Essay
Trust Law Reform Essay Current Law At present much of trust law derives from the common law. Under this a trustee is strictly liable when they act outside the terms of the trust deed or the general law, thus committing an Ultra Vires breach. This is so, even if they have acted honestly and in good faith. Proposal 1 Questionably this rule is unjustifiably strict. The Commission proposes1 that trustees should cease to be liable for this kind of breach of trust if they have "acted in good faith and taking all reasonable steps and making all reasonable enquires believed that the action was in their powers"2. This proposal aims to simplify the uncertain existing law and offers a greater level of protection to trustees acting honestly and in good faith. Nevertheless, lowering the standard of legal responsibility may have a detrimental effect on the beneficiaries. The Commission's position is that it is doubtful that it will limit the beneficiaries' right of recovery, apart from in the instance of unauthorised investment, which the commission states is unlikely to happen. Even though it is true that trustees have wide powers of investment, recent case law demonstrates that beneficiaries still have the need to claim under this ground of breach3. Proposal one also raises the issue as to what the new proposed standard of care actually is, as the wording itself is less than
consider whether the test for certainty of objects applicable to fixed and discretionary trust is reliable
2007/8 Assessed Coursework LX3051 TRUSTS Word Limit: 2,500 Answer BOTH parts Each part is worth 50% of the marks . Consider whether the different tests for certainty of objects applicable to fixed trusts and discretionary trusts are appropriate. The Certainty of object form one of the three requirements which must be satisfied to validate a trust. The fundamental principle is that to properly enforce a trust it must have cestque tui trust and it must be possible to establish who the beneficiaries are1. These apply to both fixed and discretionary trusts, which convey the expressed wish of a testator. In effect it is incumbent on the settlor to enable some means of ascertaining the intended beneficiary; and appropriate tests for objects would be needed to ensure the trust is properly enforced. Traditionally a general rule applied to all trusts; the trustee has a duty to administer the trust according to the trust instrument and so would need to know exactly how many beneficiaries there are, thus must draw up a 'fixed list'2. Under a fixed trust the testator would express the beneficiary to whom the trust was intended and therefore the object is often clear. 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 fifth and sixth dimensions of land
The fifth and sixth dimensions of land <op>1.23 If land is capable of description in three physical dimensions, and of extension into a fourth dimension by the component of time, English law soon added two further dimensions of analysis. These extra dimensions turned on the 'legal' or 'equitable' quality accorded to the various abstract rights which had emerged from the medieval conceptualism of estates. It came to be recognised that each estate could itself be 'the subject of "ownership" both in law and in equity' (Mabo v Queensland (No 2) (1992) per Deane and Gaudron JJ). Although for historical reasons 'legal estates and equitable estates have differing incidents', it is truly the case that 'the person owning either type of estate has a right of property' (Tinsley v Milligan (1994) per Lord Browne-Wilkinson). Indeed, much of the rich complexity of today's law of property results from the potential duality of estate ownership, for amidst other consequences it makes possible that most distinctive of English contributions to jurisprudence, the institution of the trust (1.26; 6.34). <ha>Legal and equitable rights <op>1.24 Within the field of proprietary rights in land, English law still draws a fundamental distinction between legal and equitable rights. Historically this distinction was grounded on the fact that legal rights were enforceable only in the common law courts of
'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 recognised exceptions are so limited, and the effects of the Contracts (Rights of Third Parties) 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 constitution of trust? The aim and purpose of the equitable maxim; "Equity will not assist a volunteer", is to prevent the enforcement of incompletely-constituted trusts on behalf of beneficiaries who have not provided valuable consideration in the eyes of the law. A volunteer is a beneficiary of property which the settlor has entered into a covenant with a third party to settle on trust for them. Usually, a volunteer cannot obtain specific performance to enforce the trust unless they are allowed to stand in the third parties' place. There are arguably three principle methods where one can do this; firstly in a circumstance of donatio mortis causa, secondly the rule laid day in Strong v Bird1 and thirdly under the Contracts (Rights of Third Parties) Act 1999. Donatio mortis causa is activated where an owner wants to make a gift of property to the donee which is only intended to take effect if he dies. Upon death equity will compel the donor's executors or administrators to perfect the donee's imperfect title, even though he is a mere volunteer. Lord Russell CJ in Cain v Moon2 laid out the
Explain to Aberlard of how he may best achieve the following bequests after his death.
Explain to Aberlard of how he may best achieve the following bequests after his death. "Aberlard, a rather eccentric character, wishes to make the following dispositions after his death. Explain to him how he can best achieve these objectives, and what problems he may encounter in trying to do so." Since "we brought nothing into the world, and we can take nothing out of it"1 An individual can execute a will indicating how to dispose of his property on his death. Such a will is required to comply with the formalities in s9 of the Wills Act 1837 as amended by s17 of the Administration of Justice Act 1982. Abelard's situation is one many faced when they wish to pass on property in their ownership to their family after death. To deal with situations like this, there is a section under Property Law which is capable of dealing with most requests of people; the Law of Trusts. To begin with I will write a broad definition of what a trust constitutes: "A trust is a situation where one person called a 'settlor' (or testator) 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
Trusts Essay on Fiduciary Duties
Consider the special significance of fiduciary conflicts rules to law firms, taking account of recent cases in this area. Introduction The most fitting way to begin the discussion of fiduciary conflict rules and their special significance to law firms, is by quoting St Matthew, chapter 6, verse 24: "No man can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other."1 The principles of fiduciary law are based on this exact statement. Whether such a broad principle is in fact a practical reality in the vocational realm of law firms is debatable, and will be examined throughout the essay. Fiduciary conflict rules come into play where a fiduciary relationship exists. Such a relationship, as best described in Bristol and West Building Society v Mothew2, presupposes a duty owed by someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence3. The nature of the solicitor-client relationship certainly meets the criteria of a fiduciary relationship, but identification of such a relationship is only the beginning, next comes the question of what duties does a solicitor owe? The primary duty for any fiduciary is that they may not have any conflict between their personal interest and that of their principal.4 This is
Compare the private trust, the trust of imperfect obligation and the charitable trust. What policy ends does the law aim to achieve by it's different treatment of each of these trusts?
EQUITY & TRUSTS Compare the private trust, the trust of imperfect obligation and the charitable trust. What policy ends does the law aim to achieve by it's different treatment of each of these trusts? In order to make a comparison between private and charitable trusts it is necessary first to identify certain key elements. Firstly what is a trust. A trust is a relationship which arises where one person (trustee) is compelled in equity to hold property for the benefit of another (beneficiary) or for a purpose permitted by law. Secondly the types of trusts which are in existence. There are many types of trusts in existence some of which include public, private, express, resulting (when beneficial interest returns to the settlor) and constructive trusts. Finally the context of law in relation to private and public trusts. This can be seen in charities in the form of the statute of Charitable Uses Act 1601 and Charities Bill 2005. A private trust is a trust which is essentially for the benefit of individuals or a specified group of people. It is enforceable by such beneficiaries as a private trust. A charitable trust is more generally known as public trust, which promotes the well being of the public by relieving poverty, advancing education, advancing religion or serving some other purpose beneficial to the community. It is enforceable by the Attorney General as a charitable
The presumptions of presumed resulting trusts and of advancement are today false and outmoded so that only lip-service is paid to them in establishing where the onus of proof lies.
"The presumptions of presumed resulting trusts and of advancement are today false and outmoded so that only lip-service is paid to them in establishing where the onus of proof lies. Instead the courts should presume that the legal title reflects the intentions of the parties unless there are circumstances (not the out-dated false presumptions), which displace it in equity. Discuss. Name: Sarah-lee Thompson Student Number: 13102102 Module title: Law of Equity and Trusts Module code: LAW504J1 Course: LLB Law and Government - Full time, Yr 3 Date: 26th November 2004 "The presumptions of presumed resulting trusts and of advancement are today false and outmoded so that only lip-service is paid to them in establishing where the onus of proof lies. Instead the courts should presume that the legal title reflects the intentions of the parties unless there are circumstances (not the out-dated false presumptions), which displace it in equity. Discuss. The debate involving presumed resulting trusts and the presumption of advancement arises when we question what is more important and what is the most logical factor to consider when dealing with such cases, the presumptions or the actual intentions of the parties. The presumptions in these areas are said to be outmoded as they are based on old law which, if used, fails to consider the true intentions of the parties which would