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?

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 law of trust is part of the law of obligations. Trustees owe duties to both beneficiaries and settlor. The nature of these duties is various, ranging from a duty not to benefit from the trust, through to a duty to distribute the trust fund to duty to administer the trust in the best way possible. It is duties such as these that make trust operative and enforceable. In this respect it is least desirable that trustees should try and escape responsibility of their personal duty to act for the benefit of the beneficiaries. As delegation implies grant of power to be exercised in a discretionary way and often without supervision it is understandable why delegation may be said to contradict the personal obligations of a trustee. Further because they are personal, for example the duty not to take benefit from the trust, it would be inconsistent to allow delegation. Cases such as Speight v. Gaunt dwell upon this two confliction propositions. In trying to reconcile them all the three judges in the case recognise the fact that trustees are unpaid, often inexperienced in capital investment and from that they concluded that it is unrealistic to expect a

  • Word count: 1686
  • Level: University Degree
  • Subject: Law
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certainty of objects

Introduction As we all know, for a trust to exist, the three certainties must be present: certainty of intention (i.e. to create to trust), certainty of subject matter (the property in the trust) and certainty of objects (those who will or may benefit under the trust): per Lord Langdale in Knight v Knight. To fulfil the requirements of 'certainty of objects', it is of long-standing in law that a trust (other than charitable trusts) must have an ascertained or ascertainable beneficiary. The reason for this 'beneficiary principle' is that a trust gives rise to an obligation and so, consequently, there must be a beneficiary to whom the duties of a trustee are owed. In other words, the beneficiaries have a correlative right to render the trustee accountable for his actions and, if necessary, compel performance of his obligations by court order: see Morice v The Bishop of Durham below. To what extent, however, is it legitimate for non-charitable purpose trusts to exist where there are no beneficiaries vested with equitable ownership in the trust property? We will discuss below, under several circumstances and exceptions, the beneficiary principle does not apply to those non-charitable purpose trusts. Thus, they are valid trusts. Beneficiary Principle It is the principle that, with the exception of charitable trusts, 'a trust to be valid must be for the benefit of

  • Word count: 2374
  • Level: University Degree
  • Subject: Law
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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

"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 trusts. What is the practical importance of determining where the beneficial interest lies in discretionary trusts? There are many difficulties in relation to the interest of beneficiaries under a discretionary trust; however for one to fully understand them, one must first understand the meaning of the elements being discussed. A discretionary Trust is defined as "a trust where the trustees have a power of appointment, that is typically, to determine who amongst a class of beneficiaries shall receive trust property and in what shares"i This is different to a mere power in that a discretionary trust must be acted on by the trustee, whereas the personal representative for a power has no need to act. The objects of the power also have no claim on the items of the power, whereas the beneficiaries have a claim on the trust property, in such shares as the trustees see right and as a result they can force trustees to exercise their discretion. It has also been said of discretionary trusts, "Discretionary trusts and powers of appointment must like all other powers, be exercised in good faith for the purpose for which they are conferred, and not for any

  • Word count: 2388
  • Level: University Degree
  • Subject: Law
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Trusts and Equity Essay

Trusts and Equity Essay - Question 4 Martin Aston was a local entrepreneur who owned 'Pro -Tech' a company manufacturing components for high performance motorcars. His company employed over 5,000 people. He died last month leaving the bequests in his will. (i) £100,000 to be used to provide bursaries to enable the children of workers who have been made redundant from jobs in the car industry to attend private schools; In order to enforce purpose trusts, three conditions must be satisfied. Their purpose must be beneficial in a way which is charitable, the benefit must be shown to be available to the public or sufficient section of the public, and not merely a private class of individuals, and, finally, the funds must be devoted exclusively to charity. Martin's children must prove that the bequests are non- charitable in purpose to show that they are invalid. The relief of poverty is recognised to be a charitable purpose1. Martin Aston is attempting to create a trust to allow the children to attend private schools. However, attending a private school does not necessarily assist in reducing poverty. The 2001 Charity Commission said that poverty concerns those who 'cannot afford the normal things in life that most people take for granted'. However, paying for the private is not a normal thing that that most people are able to afford and take for granted as they are accessible

  • Word count: 2522
  • Level: University Degree
  • Subject: Law
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TRUST: Consider whether the following purposes are, and ought to be charitable. Various examples fol

TRUST: Consider whether the following purposes are, and ought to be charitable. Various examples fol Consider whether the following purposes are, and ought to be charitable. (a) providing scholarships to assist students to learn ballroom dancing while at university. With the condition that the trustees may, in applying up to 75% of the income of the trust, give preference to children of employees of Capezio Ltd. ; (b) campaigning for a modern national health service in Ishmaliland, a country plagued by poverty and disease, where there are strong religious objections to medical procedures which involve any invasion of the body, such as surgery or vaccination by syringe; (c) support of the work of Osiris, a cult whose way of life and philosophy is based on an interpretation of ancient Egyptian supernatural beliefs, and whose doctrines require adherents to cut themselves off entirely from their families and retire to Osirian communities, where they make themselves available several times each month to discuss their faith with members of the public. In deciding if a purpose of either a trust or corporation (henceforth trusts) is charitable at law it must fall within one of the four heads expressed by Lord McNaughton in Pemsel, anything else is non-charitable. The precedent, which interprets the repealed preamble to the Statute of Charitable Uses (1601), lays the foundation of

  • Word count: 2223
  • Level: University Degree
  • Subject: Law
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Is it possible to classify the events from which non-consensual property rights arise?

Personal Property Essay: Is it possible to classify the events from which non-consensual property rights arise? Some form of classification is necessary to aid attempts to bring order to a confusing and confused area of law. If the events from which non-consensual property rights arise can be classified, then the law's response is more likely to be consistent and coherent. Yet there are problems. The very nature of the facts that are brought before courts in the sorts of cases that comprise this area of law demand fairness, and legal policy considerations lurk behind every rationalisation. This makes it more difficult to achieve coherence, but our task is less demanding than achieving coherence in the law: we only need to look at the sets of facts that give rise to property rights by 'operation of law' (which are given effect by a declaration that the property is held on constructive trust for the plaintiff) and assess whether the classifications that have been suggested are correct, if they can be improved or whether it is a lost cause and the best cause of action is to give up and in doing so suggest that some form of 'pure' discretion is the only way forward. The last alternative, to give up and suggest that the events are impossible to classify cannot be taken. This is because we are considering property rights said to arise by operation of law. This suggests some

  • Word count: 3129
  • Level: University Degree
  • Subject: Law
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The Wivenhoe Benevolent Society, a non-charitable unincorporated association, ran a social club and held dinners for worthy causes. Its funds were raised from members(TM) subscriptions and donations from well-wishers. Six weeks ago it held a di

SCHOOL OF LAW Assessed Coursework Cover Sheet 2007/8 STUDENT URN: 6009720 MODULE CODE AND NAME: LAW 209 : LAW OF PROPERTY II WORD COUNT: 904 DATE OF SUBMISSION: 3 MARCH 2008 .... An unincorporated association is an association of individuals formed for a particular purpose which does not have a distinct legal personality,1 the Wivenhoe Benevolent Society being one such association. It has no rights or duties separate from those undertaken by its individual members. The members of the unincorporated association are contractually obligated to one another, Conservative and Unionist Central Office v. Burrell.2 The general rule for non charitable purpose trusts is that they are void, Re Astor's Settlement Trusts,3 because a trust must have someone who can enforce it, which is the beneficiary principle which originated in the statement by Grant MR in Morice v. Bishop of Durham.4 The objects of the trust must be expressed with sufficient certainty to enable the courts to control the trust. Modern methods of construing dispositions to unincorporated associations include the contract-holding and agency (or mandate) theories, and the Re Denley principle.5 The definition of an unincorporated association was constructed in an Australian case Leahy v. Attorney General for New South Wales.6 As an unincorporated association it lacks a separate legal identity, English

  • Word count: 2480
  • Level: University Degree
  • Subject: Law
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Equity and trust

If Kerry intended to create a trust it would constitute as an express trust as it is a trust which has been expressly and intentionally declared by its creator (the testator). There are a number of requirements for the creation of a valid express trust. Trusts declared by will must follow the formalities laid down in S9 Wills Act 1837. A will is only valid if in writing, signed by the testator in the presence of two witnesses, who themselves attest and sign the will in the presence of the testator. An express trust must have certainty. This requirement of certainty has long been regarded as falling into three parts. However it should be stressed, that all these matters are ultimately a matter of construction.1 Firstly the settler must make it clear that his intended trustees are under an obligation to carry out his wishes. Lord Romilly2 expressed the maxim 'equity looks to the substance rather than the form', the court looks not at the words of the settlor but rather the result he was trying to achieve.3 It is therefore evident that no particular form of words are required, 'it is well settled that a trust can be created without using the word "trust" or "confidence" or the like; the question is whether in substance a sufficient intention to create a trust has been manifested'.4 The fact that Kerry has not used the word 'trust' does not then mean there is no trust.

  • Word count: 3315
  • Level: University Degree
  • Subject: Law
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Equity and Trusts

A) 'In recognition of your excellent academic performance, I will henceforth hold 250 of my shares in Superfinance Ltd on trust for you'. Homer is claiming that all of the shares in Superfinance Ltd should go to him, as residuary legatee. Lisa is disputing this. I leave my residuary estate to my brother, Homer. He owned, amongst other things 1,000 shares in Superfinance Ltd. To create a private expressed trust you must find 3 things which are the intention of the settlor to create a trust. Subject matter of the trust and the object to the beneficiaries will acquire at the end of the trust all these conditions must be proved to find a trust. Knight V Knight 1840. The test for certainty of intention is highlighted in the case of Midland Bank plc v Wyatt 1995 where a trust was made to defraud a bank therefore there was no trust because the intention should be whether on proper construction of words used the settlor intended to create a trust. 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

  • Word count: 972
  • Level: University Degree
  • Subject: Law
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The law of formalities is really a series of ad hoc responses to problems raised by revenue considerations. There is simply no real sense of a judicial development of equitable principles.

The law of formalities is really a series of ad hoc responses to problems raised by revenue considerations. There is simply no real sense of a judicial development of equitable principles. I will start my essay off by explaining what formality is all about and then explain its requirements under S.53 (1) (c) LPA 1925 and I will also use case examples for explanation and to make my point. My essay will also cover situations issues regarding Inland revenue. I will give my conclusion at the end of the essay. The main purpose of formality requirements is the prevention of fraud through hidden transactions of equitable interests, particularly oral transactions and when the legal interest remains with trustees and the equitable interest moves elsewhere, any lack of writing makes the trust difficult if not impossible to enforce at the suit of those who are, or at least reputed to be beneficially entitled. The formality requirements arose out of the Statute of frauds 1677, which were also incorporated into related statutes such as the Wills Act 1752 repealed and replaced by the Wills Act 1837 (as amended) and some of the previsions of the Statute of Frauds are reproduced under section 53(1) (c) of the Law of Property Acts 1925. My point here are principally concerned with the disposition of equitable interests and the four ways in which those interests may be dealt with was

  • Word count: 2628
  • Level: University Degree
  • Subject: Law
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