The legal principles involved in both cases are of trusts.
I will look at both relationships separately due to the fact that they have different legal principles involved. I will look at Jane' situation first, the main point here to consider is the fact that the house is in joint names which makes a significant difference to her position. Jane and Ahmed are joint tenants because the house is in both names. The legal principles involved in both cases are of trusts. A trust has been described as a relationship recognised by equity, which arises where property is vested in a person (or persons) called trustees, which those trustees hold for the benefit of other persons called cestuis que trust or beneficiaries. A constructive trust is where the court imposes a trust on the legal owner of property where it feels, in the interests of equity and good conscience, that the beneficial interest should be enjoyed by someone else. This applies in Jane's situation because the property was not purchased jointly but afterwards the house was transferred into joint names. In the case of Cohen v Cohen1 (1929) Judge Dixon pointed out the following, "where the equity is fastended upon the trustee not because he intended to become the fiduciary of property but because of the character of his dealings and in spite of his intention to take the property for himself." Ahmed invited Jane to come to his house so his dealings or intentions show something
A trust imposes one of the most powerful forms of obligation in English law.
A trust imposes one of the most powerful forms of obligation in English law. It is to be expected, therefore that the imposition of a trust on the recipient or holder of property is not to be achieved lightly. The trustee will have onerous duties to perform and is amenable to be coercive jurisdiction of the court at the suit of the benficiaries. It must be clear to the trustees what their duties are. The most important characteristic of a trust is that is a fiduciary relationship (a relationship based on confidence and trust. The fiduciary relationship exists between the trustee, who holds the title and administers the trust property, and the beneficiaries, for whose benefits the trust property is held. For a trust to be enforced, it must be possible to determine who the beneficiaries are.. Cetainty is to the nature and extent of the trust property and the interest of the beneficiaries is no less crucial, the importance of these matters has long been recognised and is now summed up by the principles that a trust cannot exist without the three certainties. The two main reason for certainty is firstly, to ensure property is correctly identified and in accordance with the wishes of the settlor, sometimes there can be doubt to those wishes which leads to the courts to play safe rather than risk an unauthorised disposition of a persons property. Secondly, it
"It is with good reason that equity requires the three certainties are demonstrated and all relevant formalities completed before an express trust will be constituted. The courts have been too willing in some cases to disregard these formalities in order
Introduction It is a truism that, in English law, a trust places one of the most powerful obligations on the recipient; and as a consequence its responsibilities should not be taken lightly. Equity requires the three certainties and formalities must be completed before an express trustI will be constituted. The three certainties, is 'a description of a set of conditions which, when fulfilled, epitomise the trust.'II For a trust to be properly constituted, it must consist of a minimum set of requirements: certainty of intention, certainty of subject matter and certainty of object. The importance of these matters was recognised by Lord Langdale MR in Knight v KnightIII where he enunciated the principle that a trust cannot exist without the 'three certainties. Reasons for the requirement of certainty and formalities A trust creates legal rights and obligations therefore it is important that a person is not held as a trustee of property when an outright gift to them was intended. The rights of the beneficiaries must be clearly established so that they may be allowed to enforce a trust should the trustee fail to carry out its terms. If there is a need to establish the true ownership of the property and be certain about the nature of the ownership of the trustee and beneficiary; then a trust needs to be created and evidenced with some measure of formality. A trust must
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?"
EQUITY AND THE LAW OF TRUSTS COURSEWORK WORD COUNT - 1805 "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?" A trust is an obligation binding an individual called a 'trustee' to deal with property in a particular way, for the benefit of one or more 'beneficiaries'. A declaration of trust must be 'certain' which means that a settlor must declare the terms of the trust with sufficient 'certainty' or precision for the trustees to know what they must do, or the intended trust fails. The classification of certainty usually cited is that of Lord Langdale in the case of 'Knight v Knight (1840)'1. The classification has been criticised, nevertheless it is the one that has been adopted by the Courts. Lord Langdale laid down the principle that 'three certainties' are required for the creation of a trust which are: * The certainty of words ( Intention ) * The certainty of subject matter * The certainty of objects If any of the certainties is absent then no valid express trust will be created. However the exact consequences will depend upon the circumstances. We will now look at each of the three certainties one by one and consider whether or not the Courts approach towards them has been consistent. Certainty of words (intention)
EQUITY AND TRUST
Re: Madge Moneybags OPINION I am asked to advise Madge's executors as to the validity of the dispositions and bequests made by Madge. My instructing solicitor, Ms R Smith, has set out the facts sufficiently and I shall refer to these instructions whenever necessary in my opinion. (1) The Validity of Trust of the Madge Mansions in favour of Gwynneth A valid express trust is one which is intentionally created by a settlor when he effectively declares a trust. It seems that Madge intended to create a trust by transferring Madge Mansions to Brad. Therefore, a trust will arise only if a valid declaration of a trust is made and there was an effective transfer of the property to Brad (see, Milroy v Lord (1862) 4 De GF & J 264). For an effective transfer of land or the interest in land, a deed is required by s.52 of the Law of Property Act 925 as otherwise it will be void and my instructing solicitor has transferred the legal title of the property to Brad to this effect. As far as the declaration is concerned, s.53(1)(b) of the Law of Property Act 1925 provides that a declaration of trust in relation any land must be manifested and proved by some writing signed by some person who is able to declare such trust. 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
Co ownership advice
Land law: advice to Albert over co ownership Albert, Bertram and Clarissa are all parties in a hotel business, with all of them contributing different amounts to the initial purchased price of £1,000,000. Albert contributed £500,000, Bertram £300,000 and Clarissa £200,000. The estimated value of the business at present is £2,000,000 but Albert now wants the business to be sold to fund his impending retirement. Both Bertram and Clarissa appose to this so I am compiling a report to advise Albert on how he can combat this situation. This type of ownership is called co ownership, otherwise known as concurrent ownership. In the past there used to be various forms of this but today there are only two. These being joint tenancy and tenancy in common. The essential characteristics of joint tenancy are the right of survivorship and the four unities. The right of survivorship is when a joint tenants interests in the property or land gets passed automatically on their death, to the surviving joint tenants. The ultimate survivor takes all. This may make this form of co ownership seem unattractive but is very appropriate for those who's ownership allows them no financial stake in the property or land. Notably trustees. It is also very appropriate for people who are in a stable relationship or married as it is very simple and convenient. The four unities are the unities of
Trust Law: With particular reference to the views of Lord Wilberforce and Lord Hodson in McPhail-v-
Trust Law: With particular reference to the views of Lord Wilberforce and Lord Hodson in McPhail-v- Trusts owe much of their present existence to the role of Equity but they have also been confined by the very same principles. The certainty requirements of Trusts is one such example of the role Equity plays, it has however managed to break from the confines of certain equitable principles by enlightened judicial intervention which places a greater reliance on different equitable principles. The law relating to certainty has been formulated, in line with equitable principles, in various cases in the nineteenth and twentieth century. These cases were somewhat agglomerated in I.R.C.-v-Broadwater Cottage Trust by Jenkins L.J. but confusion predominated his judgement because it was impossible to draw a clear line between argument and judgment. It is however possible to define some points from his judgment. He seems to feel bound by Morice-v-Bishop of Durham in that the courts could not validate a trust that was out of their control. Of more importance was his idea that a trust could not be created by the courts arbitrarily. He did understand the difficulties this presented, but again he seems to suggest he was bound by Re Ogden and unable to detract from the complete list test laid down in it. To understand why Jenkins L.J. and Lord Hodson felt confined we must look at the
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
'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
Re Shaw (1957)
3rd September 2001 The Trustees Motherhood Dear Sirs, RE: Your Application for Charitable Status Further to your recent telephone call requesting advice in relation to whether your organisation might be eligible for charitable status. We now provide written confirmation of the advice given at the telephone. As discussed, charities have been classified in four main catagories, advancement of education or religion, relief of poverty or benefit to the communty. As such it is clear that an organisation with political criteria cannot be registered as a charity. You have indicated to me that you consider yourselves to be an educational trust, highlighting issues of discrimination to mothers in the workforce. I am not of the view that your organisation would fall under the category of advancing education. Although your publications may in themselves be considered to be educational, this does not mean that your trust will also to be considered an educational one.The cases of Re Shaw (1957) and Re Hopkins (1965) clarify this position. Harman J stated in Re Shaw that that a gift is not charitable ''if the object be merely the increase of knowledge, that is not in itself a charitable object unless it be combined with teaching or education.''1 Lord Wilberforce stated in Re Hopkins ''that the word 'education'...must be used in a wide sense, certainly extending beyond teaching, and