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Express Trusts - Vesting! 3 Vesting! 3 the Express Trust Is Created in 1 of 4 Ways:! 3 Elliott V

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Express Trusts - Vesting! 3 Vesting! 3 the Express Trust Is Created in 1 of 4 Ways:! 3 Elliott V ! 1 Ch 1 – Nature and History of Equitable Interests! 1 Ch 2 – Express Trusts - Vesting! 3 Vesting! 3 The Express Trust is Created in 1 of 4 ways:! 3 Elliott v. Elliott Estate, [2008]! 3 Glynn v Federal Commissioner of Taxation (1964)! 4 Milroy v. Lord UK Court of Appeal in Chancery(1862)! 4 Re: Rose (1952)! 4 Ratner v. L.H. Ratner Construction Ltd BC CA [2010]! 5 Mordo v. Nitting [2006]! 5 Carson v. Wilson Ontario Court of Appeal [1960]! 5 Strong v. Bird (1871)! 5 Hilliard v. Lostchuk Ontario Court of Justice – General Division [1993]! 6 Certainty of Intention/Words! 6 Hayman v Nicholl SCC [1944]! 6 Royal Bank v. Eastern Trust Co PEI SC in Bankruptcy [1951]! 6 Certainty of Subject Matter! 7 Sprange v Barnard UK Chancery (1789)! 7 Re Beardmore Trusts Ontario High Court [1951]! 7 Re Golay; Morris v. Bridgewater UK Chancery [1965]! 7 Ch 3 – Express Trusts – Certainty of Objects.! 7 Powers of Appointment in Trust Settlement! 8 Tests for certainty! 8 IRC v Broadway Cottages (noted)! 8 Re Gulbenkian Settlements (noted)! 9 Baden 1! 9 Baden 2! 9 Re Manistyʼs Settlement UK Chancery 1974! 9 Re Hayʼs Settlements UK Chancery [1982]! 9 Jones v The T Eaton Co! 10 Evidential Uncertainty! 10 Ch 4 – Express Trusts (conclusion)! 10 vested future interests and contingent future interests! 10 Rule Against Perpetuities! 12 Perpetuity Act - Legislative response! 12 Formalities the law imposes! 13 S 59 Law and Equity Act CB 63! 13 WILLS ACT [RSBC 1996] CHAPTER 489! 14 WILLS, ESTATES AND SUCCESSION ACT [SBC 2009] CHAPTER 13! 14 Formalities! 14 Secret and Half Secret Trusts! 15 Ottaway v Norman 1972! 15 Re Boyes! 15 Blackwell v. Blackwell! 16 Rectification of a Will - Effect on Secret Trusts! 16 Section 59 Wills, Estates and Succession Act! 16 Revocation by Settlor of Express Trust! 17 Bill v Cureton (1835)! 17 Mordo v. Nitting! 17 Ch 5 – Resulting Trusts! 17 Automatic Resulting Trusts! 18 ! 2 IRC v Broadway Cottages (supra)! 18 Re West (1900)! 18 Schmidt v Air Products Canada,! 18 Barclays Bank v Quistclose! 19 Twinsectra Ltd v. Yardley! 20 Re Westar Mining Ltd! 20 Re British Red Cross Balkan Fund (1914)! 21 Re Gillingham Bus Disaster Fund (1958)! 21 In re West Sussex Constabulary Fund, [1971]! 21 In Re Bucks Constabulary (1970)! 21 Hanchett-Stamford v. Attorney General [2008]! 21 Presumptive Resulting Trusts.! 22 Standing v Bowring (1885)! 22 Nishi v. Rascal Trucking Ltd (2013) SCC! 22 Niles v Lake 1947 SCC! 22 Russell v Scott (1936) HC Aus! 22 Young v Sealey 1949 UK Chancery! 23 Presumption of Advancement! 23 Mehta Estate v Mehta Estate MB CA 1993! 23 Pecore v. Pecore 2007 SCC! 23 Eisner v. Baker 2007 BC SC! 23 How to Rebut Presumptions! 24 Shepherd v Cartwright! 24 Illegality and Presumptions! 24 Scheuerman v Scheuerman 1916 SCC! 24 Goodfriend v Goodfriend 1971 SCC! 25 Tinsley v. Milligan [1993] UKHL! 25 Tribe v. Soiseth! 25 Nelson v Nelson (1995) HC Aus! 26 Ch 6 – The Beneficiary! 26 Nature of title and interest in equitable property ! 26 Schalit v Nadler 1933! 26 In Re Bagotʼs Settlement! 27 Baker v Archer-Shee! 27 Transfer of the Equitable Interest to third party ! 27 Section 36 of Law and Equity Act! 27 Di Guilo vs Boland 1958 ONCA! 28 Timpsonʼs Executors v. Yerbury! 28 Priority Among Assignees! 28 In Re Wasdale CB 320! 28 Restraints on Alienation and Protective Trusts! 29 Termination of the Trust by Beneficiary! 29 Saunders v Vautier 1841 Chancellorʼs Ct! 30 Re Lysiak 1935 ON HC! 30 Re Smith v Aspinall 1928! 30 Re Chodak! 30 Lloyds Bank v Duker! 31 In re Marshall! 31 Buschau v. Rogers Communications! 31 Variations of Trusts! 31 Trust and Settlement Variation Act (RSBC 1996) c 463! 32 Re Burns 1970 BC SC! 32 Re Westinʼs Settlement! 33 ! 3 Re Remnantʼs Settlement Trusts! 33 Re Harris! 33 Russ v Public Trustee! 33 Bentall Corp v Canada Trust 1996 BC SC! 34 Buschau v. Rogers Communications! 34 Nolan v. Kerry! 34 Ch 7 – The Role of Trustee! 34 APPOINTMENT! 34 CORPORATE TRUSTEE! 34 Sections 27 – 37 of Trustee Act! 35 Re Tempest! 36 Conroy v Stokes! 37 Re Consiglio Trusts! 37 Investment Management:! 37 Section 15.1 Trustee Act! 38 Section 15.2! 38 Speight v Gaunt (1893),H.L.! 38 Fales v Canada Permanent Trust! 38 Cowan v Scargill! 39 Nestle v National Westminster Bank! 39 Ousting Court Jurisdiction! 39 Re Wynn! 39 Re Tuckʼs Settlement! 39 Boe v Alexander! 39 Re Poche! 39 Delegation:! 39 Speight v Gaunt! 40 Re Wilson! 40 Duty of Loyalty ! 40 Fiduciary Obligation! 40 Keech v Sandford! 40 Boardman v Phipps! 40 Peso Silver Mines Ltd v Cropper! 41 Canadian Aero Services v OʼMalley (Canaero)! 41 Fair Dealing/Self Dealing! 41 Denton v. Donner (1852)! 42 Holder v. Holder 1968 Eng! 42 Molchan v. Omega Oil & Gas 1988 SCC! 42 Crighton v Roman! 42 Duty to be Impartial! 42 Howe v Lord Dartmouth! 43 Earl of Chesterfieldʼs Trusts! 44 Lottman v Stanford 1980 SCC! 44 Re Lauer and Stekl! 44 Royal Trust v Crawford! 45 In re Smith! 45 Re Welsh! 45 Disbursements:! 45 Trustee Act s 10! 46 Wills, Estate and Succession Act s144! 46 Providing Information:! 46 Re Londonderryʼs Settlements! 46 Duty to Account! 46 ! 4 Trustee Act s99! 46 Sanford v Porter! 47 Indemnity and Remuneration of Trustees! 47 In Re Sproule Estate,! 47 Re Reid v Yorkshire and Canadian Trust! 47 Re Pedlar! 47 Control of Trustees by Beneficiaries and the Court! 47 Re Brockbank [1948]! 47 Butt v Kelsen! 48 Advice and Opinion from the Court! 48 Trustee Act sections 86 and 87! 48 Tempest v Lord Camoys! 48 Intervention by the Courts! 48 Re Wright! 48 Re Billes! 48 Schipper v Guaranty Trust Co of Canada! 48 Re Fleming! 49 Ch 8 – Fiduciaries and The Constructive Trust.! 49 Fiduciary Relationships! 50 Guerin v The Queen! 50 Boardman v Phipps! 50 Canadian Aero Services v. OʼMalley! 50 Frame v Smith! 50 Lac Minerals v. International Corona Resources! 50 Hodgkinson v. Simms! 51 Sun Indalex LLC v. United Steelworkers! 51 M(K) v. M(H)! 52 Constructive Trust! 52 Lac Minerals! 52 Pettkus v. Becker! 53 Soulos v. Korkontzilas! 53 Kerr v. Baranow! 54 Ch 9 – Remedies for Breach! 54 Personal Remedies! 54 Compensation for loss! 54 Guerin v The Queen! 55 Canson Enterprises v Boughton! 55 Accounting for Profit! 56 Boardman v Phipps revisited! 56 Warman International v Dwyer! 56 Scott v Scott! 57 Proprietary Remedies! 56 Remedial Constructive Trust! 56 Kerr v Baranow! 56 Sun Indalex v. United Steelworkers! 56 ! 1 Ch 1 – Nature and History of Equitable Interests 1. distinction between legal and equitable interests in property and therefore the distinction between “common law” and the “law of equity” equity within the overall Canadian common-law system. • CL narrow meaning: law that was developed by courts of 12th C England - royal judges who took customs of England and Wales and wove them together. DOES NOT INCLUDE EQUITY • EQ narrow meaning: court of Chancellor (Chancery) was the “Kingʼs Conscience” - divine right left him in charge of doing justice. had jurisdiction over Eq: This allowed him to change a ʻcorrectʼ CL decision in order to do justice between the parties - • Kingʼs auth reposed in chief official, Chancellor, office coalesced into system of rules and ct of itʼs own. Meant 2 separate/parallel court systems 2. systematization of “conscience” into the maxims of equity and rules of equity and the relationship of the law of trusts to the system of equity - developed maxims • Equity will not permit a wrong without a remedy • where the is a k for sale of land and you have not complied with statute of frauds eg k is void. But if thereʼs been part performance you move into equitable remedy of part performance because unconscionable otherwise • Equity follows the law • absent an unconscionable outcome, equity will respect and give effect to CL rules. • This approach of equity is a compromised response following the spat between Lord Ellesmere VC and Sir Edward Coke CJ (settled in favour of the court of chancery decisions by James I) post the Earl of Oxford case • Those who seek equity must do equity • “clean hands” doctrine • Equity assists the vigilant and not the tardy - laches not rewarded • Equity is equality: proportionality among contributors • Equity looks to the intent rather than the form • substance trumps form • Equity looks on that which ought to be done as being done • eg: if you entered into a lease orally, and you move in but donʼt pay rent - even though thereʼs no ʻformʼ there is clearly because you moved in you should also be paying rent • Equity acts in personam • the person is what counts most, but note increasing proprietary aspect of equitable interests • looks at personal situation (partic in constructed trust) - not hidebound in damages to actual losses could look at potential losses • Equity will not assist a volunteer (someone who has not given value) • Equity will not fail a trust for want of a trustee • If all the trustees die, the beneficiary can go to ct and ask for a new one/ones 3. importance and application of the distinction between legal interests on the one hand and equitable interests on the other and its operation in the social and economic realm of a prevailing culture including our own in these times • LEGAL TITLE concerned with ʻuseʼ ie control, management, administration • EQUITABLE TITLE concerned with benefit, enjoyment ʻjoysʼ • commentators out of university of Padua writing on ownership (Civil code) to articulate concept of ownership (unknown to CL where all was owned by King and ppl just had interests) These commentators said ownership was a collection of rights • ius utendi - use (trustee) • ius fruendi - enjoyment (beneficiary) ! 2 • ius disponendi - disposition (both - beneficiary can transfer his equitable title) • concept that if you had ownership, you had those 3 things, and you could always recover it: • ubi invenio, ibi vindico – where I find my thing there I can vindicate (recover) it • this was the creation of real rights - “in rem” rights (against the world) as opposed to in personum rights as in k against a person.
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