The Trust As an Equitable Response
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Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline 1
Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline Order of Operations (Will) • Problems with the will itself o Facts showing improper execution (signature, witnesses, statements, affidavits, etc.), other will challenges (Question call here is whether will should be admitted to probate) . Look out for disinherited people who have standing under the intestacy statute!! . Consider mechanisms to avoid will challenges (no contest, etc.) o Will challenges (AFTER you deal with problems in execution) . Capacity/undue influence/fraud o Attempts to reference external/unexecuted documents . Incorporation by reference . Facts of independent significance • Spot: Property/devise identified by a generic name – “all real property,” “all my stocks,” etc. • Problems with specific devises in the will o Ademption (no longer in estate) . Spot: Words of survivorship . Identity theory vs. UPC o Abatement (estate has insufficient assets) . Residuary general specific . Spot: Language opting out of the common law rule o Lapse . First! Is the devisee protected by the anti-lapse statute!?! . Opted out? Spot: Words of survivorship, etc. UPC vs. CL . If devise lapses (or doesn’t), careful about who it goes to • If saved, only one state goes to people in will of devisee, all others go to descendants • Careful if it is a class gift! Does not go to residuary unless whole class lapses • Other issues o Revocation – Express or implied? o Taxes – CL is pro rata, look for opt out, especially for big ticket things o Executor – Careful! Look out for undue -
Confidential Relations and Unenforcible Express Trusts
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1928 Confidential Relations and Unenforcible Express Trusts George Gleason Bogert Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation George Gleason Bogert, "Confidential Relations and Unenforcible Express Trusts," 13 Cornell Law Quarterly 237 (1928). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CONFIDENTIAL RELATIONS AND UNEN- FORCIBLE EXPRESS TRUSTS GEORGE GLEASON BOGERT* It is a commonplace that courts of equity frequently base relief solely on the violation of a confidential relation. One of numerous examples of this action is to be found in the constructive trusts which are often created where a grantee has broken an oral, unenforcible promise to hold in trust for the grantor, and the grantee stood in a confidential relation to the grantor at the time of the making of the promise. The following is a typical case: A has conveyed land to B on B's oral agreement to hold it in trust for A and reconvey at A's command. A and B were in confidential relations before the deed was made. The Statute of Frauds prevents the enforcement of B's express promises. The retention of the land after setting up the Statute is not generally regarded as such inequitable conduct as to justify a decree that the holder is a constructive trustee. -
Trustee Liability Issues –Offshore
TRUSTEE LIABILITY ISSUES –OFFSHORE 11th Annual International Estate Planning Institute March 13th – 4pm, Crowne Plaza, Times Square, New York Vanessa Schrum, Appleby (Bermuda) Limited 1. INTRODUCTION A trustee can be faced with many forms of liability including liabilities to third parties, contractual liabilities, liabilities in tort and liabilities as a titleholder (eg shareholder or owner or land). But perhaps one of the biggest concerns to trustees is potential liability to beneficiaries for breaches of trust. In order to fully appreciate the extent to which trustees may face liability for breaches of trust it is important to understand the duties of trustees. 2. TRUSTEE DUTIES Trustee duties are obligations contained in the trust instrument or imposed by common law or statute, which must be carried out by the trustees. In the Channel Islands (unlike other offshore jurisdictions) generally trustee duties are imposed by statute. Duties and powers prescribed by general law may be modified by the trust instrument, but there are minimum core obligations placed on trustees that cannot be avoided. At their basic a duty to act honestly and in good faith1 and an overriding obligation to preserve and safeguard the trust property. Importantly there is a “duty of care” on the trustees which is a standard that they must meet in every aspect of the performance of the role as trustees. The standard applied to the duty of care differs for lay and professional trustees. Licensed trustees in offshore jurisdictions will also be subject to the Regulations and Codes of Practice issued by the relevant governing authority in that jurisdiction. -
Getting Title out of a Trust
GETTING TITLE OUT OF A TRUST Prepared by Ward P. Graham, Esq. Vice President, Region H Counsel Stewart Title Guaranty Company For 2002 Stewart Title Guaranty Company Agency Seminar A. INTRODUCTION For purposes of this seminar, we’re going to deal with issues involving getting title out of express trusts, i.e., those created by some form of instrument. We won’t be discussing trusts arising or imposed by operation of law, such as constructive trusts and resulting trusts. Nor will we get into the world of charitable trusts or the statutory custodial-type trusts dealt with in G.L. Chapters 201C and 203B. What we will be discussing are the two basic types of trusts that you are most likely to see in your conveyancing practice, testamentary trusts (created by the will of a decedent) and inter vivos trusts under written agreements or “declarations”. Included among the latter, for purposes of our discussion relating to taking title to real estate out of a trust, are revocable trusts, irrevocable trusts and so-called “nominee” trusts (most commonly containing the words “Realty Trust” in their name and being the most common form of trust used for real estate title holding purposes). But first, let’s start with some of the basics of trust law. B. CREATION OF TRUSTS 1. The Primary Relationship: Trustee and Beneficiary. 1 To begin with, for our purposes, “No trust concerning land, except such as may arise or result by implication of law, shall be created or declared unless by a written instrument signed by the party creating or declaring the trust or by his attorney.” G.L. -
ARMITAGE V. NURSE (1997) the Facts the Settlement Was Made on 11Th. October 1984. It Was the Result of an Application to The
ARMITAGE v. NURSE (1997) The facts The Settlement was made on 11th. October 1984. It was the result of an application to the Court by the trustees of a Marriage Settlement made by Paula’s Grandfather for the variation of the trusts of the settlement under the Variation of Trusts Act 1958. Paula’s Mother was life tenant under the Marriage Settlement and Paula, who was then aged 17, was entitled in remainder. The settled property consisted largely of land which was farmed by a family company called G.W. Nurse & Co. Limited (“the Company”). The Company had farmed the land for many years and until March 1984 it had held a tenancy of the land. Paula’s Mother and Grandmother were the sole directors and shareholders of the Company. Under the terms of the variation the property subject to the trusts of the Marriage Settlement was partitioned between Paula and her Mother. Part of the land together with a sum of £230,000 was transferred to Paula’s Mother absolutely free and discharged from the trusts of the Marriage Settlement. The remainder of the land (“Paula’s land”) together with a sum of £30,000 was allocated to Paula. Since she was under age, her share was directed to be held on the trusts of a settlement prepared for her benefit. So the Settlement came into being. Under the trusts of the Settlement the trustees held the income upon trust to accumulate it until Paula attained 25 with power to pay it to her or to apply it for her benefit. -
ELIZABETH KERR ET AL. V. LYDIA HENDERSON ET AL
09/28/2020 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE July 23, 2020 Session ELIZABETH KERR ET AL. v. LYDIA HENDERSON ET AL. Appeal from the Chancery Court for Johnson County No. 7226 John C. Rambo, Chancellor No. E2020-00112-COA-R3-CV In this case involving the inheritance of an investment account, the three plaintiffs filed a complaint in September 2016, asserting, inter alia, that a letter executed by their father prior to his 2007 death had operated to create an express trust concerning the account, for which their stepmother had acted as trustee with the understanding that the plaintiffs were to be the beneficiaries of the account after her death. The plaintiffs alternatively sought imposition of a constructive trust. The plaintiffs’ stepmother, who is the subject decedent in this action, had died in April 2016. The plaintiffs initially named as defendants the co- executors of the decedent’s estate, as well as the financial institution holding the investment account. The trial court subsequently entered agreed orders to dismiss the financial institution as a party and to substitute as defendants the decedent’s three adult children from a previous marriage. Upon competing motions for summary judgment and following a hearing, the trial court granted summary judgment in favor of the plaintiffs, finding that an express trust had been created by the writings of the plaintiffs’ father and that, alternatively, a constructive trust should be imposed based on the combined writings and actions of the plaintiffs’ father and the decedent. The defendants filed a motion to alter or amend the judgment, which the trial court denied following a hearing upon finding in part that new evidence submitted by the defendants should not be considered. -
Trusts: Express Trusts Where the Trustee Lacks Legal Title Donald J
Marquette Law Review Volume 48 Article 9 Issue 1 Summer 1964 Recent Decisions: Trusts: Express Trusts Where the Trustee Lacks Legal Title Donald J. Bauhs Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Donald J. Bauhs, Recent Decisions: Trusts: Express Trusts Where the Trustee Lacks Legal Title, 48 Marq. L. Rev. (1964). Available at: http://scholarship.law.marquette.edu/mulr/vol48/iss1/9 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. MARQUETTE LAW REVIEW [Vol. 48 Trusts: Express Trusts Where the Trustee Lacks Legal Title: In Estate of Martin,' it appears from the court's statement of facts, al- though the exact terms of the wili are not set forth, that the testator had intended by his will to create a trust wherein the trustee was to have legal title to the trust assets plus a power of sale over the realty. The testator's wife was to receive the use and income from the trust assets for life, the corpus to pass to the testator's children upon the wife's death. The final decree of distribution in the probate proceedings, how- ever, transferred the property not to the trustee but to the wife, giving her the use and income thereof for life, the corpus to go to the testator's children. -
An Ordering of the Law of Trusts
This essay was originally Chapter 36 of the third edition of Equity & Trusts, published in 2003. Its purpose was, at the end of that book, to consider the various forms of trust including public interest trusts and unincorporated associations. I am in the course of attempting to put together an article on the ordering of trusts law which will build on these ideas. In time it will appear on this site. AN ORDERING OF THE LAW OF TRUSTS 36.1 INTRODUCTORY The express trust is an equitable institution: one which has hardened over time into something resembling a contract in that the rules for its creation, operation and termination have become concrete.1 This development is due both to its commercial application and its long-standing use as a means of providing for the welfare of rich families in marriage settlements or will trusts. Both of these contexts required certainty in the use of trusts with the result that the general equitable notions have been pushed into the background.2 This chapter suggests that the bright line tendency of much of the law on express trusts towards ever stricter rules means that there is a need for a new division in the categories of the law of trusts. The increasing prominence of pension funds and investment funds based on trusts law principles requires that the existing principles of trusts law be developed to match the regulatory rules applied to such funds. That is aside from the equally difficult developments in the treatment of trusts implied by law.3 This essay attempts to outline some of the ways in which that re- drawing of principles could take effect, once it has re-established the foundations on which trusts law is built in spite of other competing, fashionable notions. -
An Introduction to Trust Law in Singapore TANG Hang Wu* 1
An Introduction to Trust Law in Singapore TANG Hang Wu* 1 Characteristics of Singapore Trust Law1 1.1 Creation of a trust Singapore, being a former British colony, inherited the common law legal system. One of the unique features of the common law model is the dualism which is inherent in the legal system. Common law legal systems are largely precedent-based and the precedents can be divided roughly by their origins, namely, Law and Equity. Equity may be defined as a body of rules, principles and remedies initially developed and administered in the English High Court of Chancery before 1873. Both branches of the law are historically distinct although both are now administered by the same courts concurrently (see section 3 of the Civil Law Act (Cap 43, 1994 Revised Ed.) and section 26 of the Subordinate Courts Act (Cap 321, 2007 Revised Ed.)). Another unique feature of the Singapore system is that syariah law applies to Muslims domiciled in Singapore with regard to their inheritance (see section 111 of the Administration of Muslim Law Act (Cap 3, 2009 Revised Ed)). Thus, it is possible for Muslims domiciled in Singapore to create Muslim charitable trusts i.e. a wakaf in their wills. All wakafs are administered by the Islamic Council of Singapore (Majlis Ugama Islam Singapura). This paper will not explicate the principles governing wakafs. One of the unique features of the common law system is the existence of a dual ownership of property. Ownership of property can be divided into the following: a legal interest and an equitable interest. -
The Kansas Uniform Trust Code David M
University of Missouri School of Law Scholarship Repository Faculty Publications Winter 2003 The Kansas Uniform Trust Code David M. English University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Estates and Trusts Commons, and the Legislation Commons Recommended Citation David M. English, The Kansas Uniform Trust Code, 51 U. Kan. L. Rev. 311 (2003) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. The Kansas Uniform Trust Code David M English* I. INTRODUCTION Senate Bill 297, which was enacted by the Kansas legislature in 2002 and which became effective on January 1, 2003, is a substantial adoption of the Uniform Trust Code (2000) ("UTC"). The Kansas UTC is codi- fied in a new chapter, Kansas Statutes Annotated chapter 58a.' The UTC is the Uniform Law Commissioners' first effort to provide the states with a comprehensive model for codifying their law on trusts.2 Kansas is the first state to enact the UTC, although bar committees and other groups in over thirty states are currently studying the Code for enactment. Several enactments are expected in 2003. Kansas became the first state to enact the UTC because Kansas was the first state to appoint a committee to study the UTC. Shortly after drafting began at the national level in 1994, the Kansas Judicial Council began studying the various drafts and con- sidering modifications necessary for enactment in Kansas. -
Title 30.1 Uniform Probate Code
TITLE 30.1 UNIFORM PROBATE CODE CHAPTER 30.1-01 SHORT TITLE - CONSTRUCTION - GENERAL PROVISIONS - DEFINITIONS 30.1-01-01. (1-101) Short title. This title shall be known and may be cited as the Uniform Probate Code. 30.1-01-02. (1-102) Purposes - Rule of construction. 1. This title shall be liberally construed and applied to promote its underlying purposes and policies. 2. The underlying purposes and policies of this title are: a. To simplify and clarify the law concerning the affairs of decedents, missing persons, protected persons, minors, and incapacitated persons. b. To discover and make effective the intent of a decedent in distribution of the decedent's property. c. To promote a speedy and efficient system for liquidating the estate of the decedent and making distribution to the decedent's successors. d. To facilitate the use and enforcement of certain trusts. e. To make uniform the law among the various jurisdictions. 30.1-01-03. (1-106) Effect of fraud and evasion. Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this title, or if fraud is used to avoid or circumvent the provisions or purposes of this title, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud or restitution from any person, other than a bona fide purchaser, benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. -
The Strength of Beneficiaries' Rights Under English Law and the Laws of the Caribbean States
The Strength of Beneficiaries’ Rights Under English Law and the Laws of the Caribbean States The Honourable Mr Justice David Hayton, Judge of the Caribbean Court of Justice A Transcontinental Trust Conference in Geneva Geneva 19 June 2013 Informa Connect gathers millions of professional and commercial customers. Their mission is to give access to extraordinary people and exceptional insight. They provide unique opportunities to learn, establish relationships and do business. They do this through a range of products and services, from digital platforms to live events like the Transcontinental Trust Conference. Remarks By The Honourable Mr Justice David Hayton, Judge of the Caribbean Court of Justice, On the occasion of The Transcontinental Trust Conference in Geneva 19 June 2013 The general background as to beneficiaries’ rights As Millett LJ (as he then was) stated1, “There is an irreducible core of obligations owed by the trustees to the beneficiaries and enforceable by them which is fundamental to the concept of a trust. If the beneficiaries have no rights enforceable against the trustees there are no trusts.” In recent years, however, many settlors have increasingly wished to diminish their beneficiaries’ rights so far as possible. Draftspersons have accommodated these wishes to the extent that they consider possible and many Caribbean States have responded by enacting legislation making clear how far it is possible to diminish beneficiaries’ rights. Indeed, the Cayman Islands went so far as to enact Special Trust Alternative Regime legislation to create special trusts known as STAR trusts where what would normally be the beneficiaries’ rights against the trustees are held only by an enforcer or enforcers appointed pursuant to the terms of the trust or by order of the court.