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Institute of Legal Executives Level 6
Subject 38 INSTITUTE OF LEGAL EXECUTIVES LEVEL 6 - EQUITY & TRUSTS EXAMINER’S REPORT – AUTUMN 2009 Introduction The primary aim of this report is to do the following: • comments on overall performance by candidates in the Autumn 2009 Equity and Trusts examination; • advises on how performance might be improved; • indicates what should be contained in successful answers to the questions in the examination paper; • provides comment on performance in individual questions. • this is the final Equity and Trusts examination paper under the Level 6 Professional Higher Diploma in Law. If candidates have failed then they should consider sitting Equity and Trusts on the new Level 6 Professional Higher Diploma in Law and Practice. Information is available on the ILEX website at [email protected] Comment on Overall Performance This is a Level 6 paper and was, consequently, appropriately demanding. Successful candidates are therefore to be congratulated. The most common weaknesses were: 1. Poor legal problem solving skills; 2. Lack of adequate skills for tackling essay questions; 3. Poor structure and inadequate understanding of how to use the law to answer questions; 4. Lack of knowledge of the law of Equity and Trusts. Poor Legal Problem Solving Skills Common weaknesses included: failure to identify all the key issues raised by the problem questions; failure to identify the particular principles of law relevant to the problems; failure to state the law accurately and cite cases appropriately; failure to apply the law to the facts of problem questions in an appropriate manner or (in the case of a few candidates) to apply it to the facts at all. -
“The Execution of a Trust Shall Be Under the Control of the Court” : a Maxim in Modern Times
This is a repository copy of “The execution of a trust shall be under the control of the court” : A Maxim in Modern Times. White Rose Research Online URL for this paper: https://eprints.whiterose.ac.uk/88217/ Version: Published Version Article: Nolan, Richard orcid.org/0000-0002-7134-5124 (2016) “The execution of a trust shall be under the control of the court” : A Maxim in Modern Times. Canadian Journal of Comparative and Contemporary Law. pp. 469-496. ISSN 2368-4046 Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing [email protected] including the URL of the record and the reason for the withdrawal request. [email protected] https://eprints.whiterose.ac.uk/ (2016) 2(2) CJCCL 469 “e execution of a trust shall be under the control of the court”: A Maxim in Modern Times Richard C Nolan* This article examines the ancient, well attested, but largely unexamined, inherent jurisdiction of the court to supervise, and if necessary administer and execute, any trust. It considers the modern and inventive use of this jurisdiction, and its vital role in the juridication of innovative trust practice. -
The Law of Trusts and Equity
Queen Mary, University of London School of Law LAW OF PROPERTY III EQUITY, TRUSTS & RESTITUTION Seminar Materials 2009/2010 1 Equity, Trusts & Restitution Law of Property III Seminar Outlines 2009/2010 The structure of this module The first seminars will be held in rotation starting from weeks 3 and 4 of the winter semester. Seminars are bi-weekly. Students must read chapters 1 and 2 in Hudson‟s Equity & Trusts or a similar textbook by way of introduction to this topic before the first seminar. This module is structured so that these materials will be covered in lectures before students are required to consider them for seminars. The following 11 seminars will form the basis of the module. Seminar Title Date, depending on your No. group, week commencing 1 Introduction, certainty of intention & 12 October / 19 October certainty of subject matter 2 Certainty of objects 26 October / 2 November 3 The beneficiary principle 16 November / 23 Nov. 4 The constitution of trusts 30 November / 7 Dec. 5 Duties of trustees and breach of trust 14 December / 11 Jan. 6 Quistclose trusts 18 January / 25 Jan. 7 Trusts of homes 1 Feb. / 8 Feb. 8 Constructive trusts 15 February / 1 Mar. 9 Dishonest assistance and knowing receipt 8 March / 15 March 10 Tracing 22 March / 29 March 11 Unjust enrichment *Date to be arranged* NB: Weeks commencing 9 November and 22 February are reading weeks so there are no seminars in those weeks – hence the chronological gaps in the schedule above. What to read for this module This document is simply made up of the questions which you will consider for the larger part of your seminars – all of the reading is set out in the Lecture Course Documents. -
Unit 5 – Equity and Trusts Suggested Answers - January 2013
LEVEL 6 - UNIT 5 – EQUITY AND TRUSTS SUGGESTED ANSWERS - JANUARY 2013 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2013 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1 This essay will examine the general characteristics of equitable remedies before examining each remedy in turn to analyse whether they are in fact strict and of limited flexibility as the question suggests. The best way to examine the general characteristics of equitable remedies is to draw comparisons with the common law. Equitable remedies are, of course discretionary, whereas the common law remedy of damages is available as of right. This does not mean that the court has absolute discretion, there are clear principles which govern the grant of equitable remedies. Equitable remedies are granted where the common law remedies would be inadequate or where the common law remedies are not available because the right is exclusively equitable. One of the key characteristics of equitable remedies is of course that they act in personam. -
Equity Notes
THREE CERTAINITIES • An express trust must be certain in three (3) distinct respects (Knight v Knight (1840)): 1) Certainty of intention: settlor must have intended to create a trust of the property as opposed to making a gift or lending it to another; 2) Certainty of subject-matter: property must be specified with reasonable certainty; 3) Certainty of objects: the beneficiaries of trust must be sufficiently identifiable. • Charitable trusts are not required to satisfy the requirement of certainty of objects. • Resulting and constructive trusts will not satisfy the requirement of certainty of intention. CERTAINTY OF INTENTION • The settlor must’ve intended to create a trust of their property as opposed to making a gift or a loan. • An intention to create a trust is an intention to impose on a property owner an obligation to apply the property for the benefit of identified beneficiaries or for recognised charitable purposes. • The settlor must’ve intended to create a legally binding relationship. • The settlor need not need to use the word “trust” or any particular words: Re Armstrong [1960]. • The intention is determined by reference to the settlor’s objective intention: Byrnes v Kendle [2011], question is whether a reasonable person would consider that in all the circumstances the settlor intended to create the trust? Must consider the settlor’s words and actions to assess whether they manifested a sufficient objective intention to create a trust: Paul v Constance [1977]. • A settlor must intend to create a trust which takes effect immediately (unless consideration had been provided to create trust at later time): Harpur v Levy [2007]. -
Sharing Homes: a Discussion Paper
The Law Commission (LAW COM No 278) SHARING HOMES A Discussion Paper Presented to the Parliament of the United Kingdom by the Lord High Chancellor by Command of Her Majesty November 2002 Cm xxxx The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Toulson, Chairman 1 Professor Hugh Beale QC Mr Stuart Bridge Professor Martin Partington CBE Judge Alan Wilkie, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. This Discussion Paper was first published online on 18 July 2002. The text of this Discussion Paper is available on the Internet at: http://www.lawcom.gov.uk 1 At the date this report was signed, the Chairman of the Law Commission was the Right Honourable Lord Justice Carnwath CVO. ii THE LAW COMMISSION SHARING HOMES A Discussion Paper CONTENTS Paragraph Page Executive Summary vi PART I: INTRODUCTION 1 The shared home 1.6 2 A property-based approach 1.23 6 PART II: THE CURRENT LAW 9 Introduction 2.1 9 Trusts of land 2.4 10 Legal and beneficial ownership of the shared home 2.10 11 Legal title – joint tenancy 2.12 11 Beneficial ownership- joint tenancy or tenancy in common 2.16 12 Resolution of disputes between trustees and beneficiaries 2.23 14 Dealings with third parties 2.27 15 Occupation of the shared home 2.32 17 Where a person has an interest under a trust of land 2.34 17 Matrimonial home rights 2.37 18 Orders regulating -
Proprietors of Wakatū V Attorney-General
Identifying Identifiability Re-Assessing Certainty of Subject-matter of Trust in Light of Proprietors of Wakatū v Attorney-General Nicholas White A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (with Honours) at the University of Otago – Te Whare Wananga o Otago October 2018 Acknowledgments: I would like to thank Professor Jessica Palmer for the invaluable time, knowledge and insight she has offered me while supervising this dissertation, for challenging me, and for always bringing me back to the big picture; To Nicola, for the constant support, and dealing with all the late nights, caffeine fuelled stress and a generally unhealthy focus on the particularities of trust law; To my friends, flatmates and family, for putting up with me through this; And to my parents, for everything. 2 Table of Contents Introduction ........................................................................................................................................... 5 Chapter I: The Uncertainty in Certainty of Subject-matter ............................................................. 8 A. Certainty of Subject-Matter in Trusts......................................................................................... 8 B. The Three Conflicting Cases ...................................................................................................... 9 I. Re London Wine ...................................................................................................................... 9 II. Hunter v Moss......................................................................................................................... -
Text, Cases and Materials on Equity and Trusts
TEXT, CASES AND MATERIALS ON EQUITY AND TRUSTS Fourth Edition Text, Cases and Materials on Equity and Trusts has been considerably revised to broaden the focus of the text in line with most LLB core courses to encompass equity, remedies and injunctions and to take account of recent major statutory and case law developments. The new edition features increased pedagogical support to outline key points and principles and improve navigation; ‘notes’ to encourage students to reflect on areas of complexity or controversy; and self-test questions to consolidate learning at the end of each chapter. New to this edition: • Detailed examination of The Civil Partnership Act 2004 and the Charities Act 2006. • Important case law developments such as Stack v Dowden (constructive trusts and family assets), Oxley v Hiscock (quantification of family assets), Barlow Clowes v Eurotrust (review of the test for dishonesty), Abou-Ramah v Abacha (dishonest assistance and change of position defence), AG for Zambia v Meer Care & Desai (review of the test for dishonesty), Re Horley Town Football Club (gifts to unincorporated association), Re Loftus (defences of limitation, estoppel and laches), Templeton Insurance v Penningtons Solicitors (Quistclose trust and damages), Sempra Metals Ltd v HM Comm of Inland Revenue (compound interest on restitution claims) and many more. • New chapters on the equitable remedies of specific performance, injunctions, rectification, rescission and account. • Now incorporates extracts from the Law Commission’s Reports and consultation papers on ‘Sharing Homes’ and ‘Trustee Exemption Clauses’ as well as key academic literature and debates. The structure and style of previous editions have been retained, with an emphasis on introduc- tory text and case extracts of sufficient length to allow students to develop analytical and critical skills in reading legal judgments. -
Creation of Express Trusts Capacity
Creation of Express Trusts Capacity - ‘Legal competency or qualification’ - Two common exclusions = poor mental health, infancy - S1(6) LPA 1925: a minor cannot hold a legal estate in land (so cannot create a trust of land). THE THREE CERTAINTIES - Knight v Knight: Lord Langdale: for an express trust to be created the settlor must express 3 things with certainty. o Certainty of intention o Certainty of subject matter o Certainty of objects Certainty of Intention - Did settlor intend to subject the property to a trust obligation? - Two ways in which a trust can be created: o The settlor declares himself trustee of property that he already owns; o Settlor transfers property to another person directing that they hold it on trust for the beneficiary. - Has the settlor done enough to make clear his intention? - Re Kayford Ltd – Megarry LJ: ‘a trust can be created without using the words “trust” or “confidence” or the like; the question is whether in substance a sufficient intention to create a trust has been manifested’. - Company opened separate account, ‘Customer’s Trust deposit Account’ to pay in money received for goods not yet delivered, withdrawing the money only if goods were later delivered – so they could refund customers if goods not supplied (if company went into liquidation). - Held: trust had been created. - Paul v Constance: C separate from his wife + lived with P. A number of times C told P that the money was as much hers as his. o C died intestate + as he had not divorced his wife, wife was entitled to all of his estate. -
Rethinking the Common Intention Constructive Trusts in Stack V Dowden and Jones V Kernott – Should the Resulting Trusts Be Preferred?
Rethinking the Common Intention Constructive Trusts in Stack v Dowden and Jones v Kernott – should the Resulting Trusts be preferred? by Yee Ching Leung Abstract Yee Ching Leung takes the two landmark cases, Stack v Dowden [2007] UKHL 17 and Jones v Kernott [2011] UKSC 53, as starting points to consider the new Common Intention Constructive Trust approach in dealing with the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. The article analyses whether this new approach should be preferred over the traditional Resulting Trust approach. The author explains the two approaches and gives three arguments in support of the Resulting Trust approach. First, it provides a greater degree of certainty, which is crucial in property law. Secondly, the traditional approach is more coherent in principle when comparing to the Common Intention Constructive Trust approach. Thirdly, the author argues that the Resulting Trust approach would not leave the discretion of judges unconfined. Toward the end of the article, the author gives two brief replies to the critics of the Resulting Trust approach. However, the Common Intention Constructive Trust approach is now the law of England and whether the Resulting Trust approach will return remains to be seen. I. Introduction This article concerns the issue of how the beneficial interest of a property is to be shared between two separating cohabitants. Generally, the issue can be resolved by either an express trust or an express agreement. However, in a domestic context, it is common that cohabitants do not make explicit arrangements. Accordingly, the courts have to decide the issue when disputes arise during their separation. -
Equity & Trusts
CHIEF EXAMINER COMMENTS WITH SUGGESTED ANSWERS JANUARY 2021 LEVEL 6 - UNIT 5 – EQUITY & TRUSTS Note to Candidates and Learning Centre Tutors: The purpose of the suggested answers is to provide candidates and learning centre tutors with guidance as to the key points candidates should have included in their answers to the January 2021 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which candidates may have included in their responses to the questions. Candidates will have received credit, where applicable, for other points not addressed by the suggested answers. Candidates and learning centre tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ comments contained within this report, which provide feedback on candidate performance in the examination. CHIEF EXAMINER COMMENTS The better performing candidates exhibited similar characteristics, in that they possessed both good knowledge and understanding of case law and statute, which they were then able to deploy in providing relevant legal analysis, argument or advice. Weaker candidates were found wanting in one or more of these respects. A number of weaker candidates tended simply to recite everything that they were able to recall about a particular topic (whether or not it was immediately relevant to the question posed). In many (but, unfortunately, not all) cases, they would then conclude with a single sentence along the lines of ‘this shows/proves/demonstrates that….’, or ‘I therefore agree/disagree with the statement in the question’, or ‘It follows that X has a claim for/should (not) do …’. -
Law of Contract July 2010
LEVEL 6 - UNIT 5 - EQUITY AND TRUSTS SUGGESTED ANSWERS - JANUARY 2014 Note to Candidates and Tutors: The purpose of the suggested answers is to provide students and tutors with guidance as to the key points students should have included in their answers to the January 2014 examinations. The suggested answers set out a response that a good (merit/distinction) candidate would have provided. The suggested answers do not for all questions set out all the points which students may have included in their responses to the questions. Students will have received credit, where applicable, for other points not addressed by the suggested answers. Students and tutors should review the suggested answers in conjunction with the question papers and the Chief Examiners’ reports which provide feedback on student performance in the examination. SECTION A Question 1 (a) “Every effort” test The transfer of the legal title to company shares is not complete until the transferee is registered by the company. Similarly a gift of the legal estate in land is not effective until the donee is registered at the Land Registry. In these cases the final stage in the transfer formalities is in the hands of a third party and is outside the donor’s control. Such gifts are effective in equity before the legal title is transferred if the donor has done everything required of him or her to transfer legal title (Milroy v Lord (1862); Re Rose (1952)). In Re Rose it was held that this stage is reached for gifts of shares when the transferor has parted with the stock transfer form and share certificate beyond recall and it lies in the transferee’s power to be registered as the new shareholder.