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Copyrighted material – 9781137606723 Contents Preface xiii Acknowledgement xv Table of cases xvi Table of legislation xxv 1 An introduction to equity and trusts 1 1.1 What are we doing here? 1 1.2 What is a trust? 1 1.3 Property and trusts 2 1.4 The varieties of trusts 3 1.5 Intended and imposed trusts 3 1.6 Equity 4 1.6.1 Equity and the common law 5 1.6.2 Equity and the law of trusts 6 1.7 The fusion of common law and equity 7 1.7.1 The case for substantive fusion 7 1.7.2 Ant-fusion arguments 9 1.7.3 Equity, conscience and discretion 10 1.8 The maxims of equity 13 1.9 The uses of trusts 14 1.10 A map through this book 17 Summary 17 Exercises 18 Further reading 18 2 Basic concepts and principles 19 2.1 Fixed and discretionary trusts 19 2.2 Trusts and powers 19 2.3 The nature of a beneficiary’s interest under a trust 21 2.3.1 Property and proprietary interests 21 2.3.2 Establishing equitable title 23 2.3.3 Rights in things and rights in rights 24 2.4 The variety of proprietary interests 28 2.5 Equitable title and beneficial title 29 2.6 The rule in Saunders v Vautier 30 2.6.1 Justifying the Saunders v Vautier rule 31 2.6.2 Trusts as gifts and trusts as contracts 33 2.7 Trusts and funds 34 2.8 The bona fide purchase rule 34 Summary 38 Exercises 39 Further reading 39 v Copyrighted material – 9781137606723 Copyrighted material – 9781137606723 vi Contents 3 Certainty 40 3.1 The three certainties 40 3.2 The need for certainty 40 3.3 Intention 40 3.3.1 Imperfect gifts 41 3.3.2 Subjective and objective intentions 42 3.3.3 Precatory words 43 3.3.4 Segregation of trust property 45 3.4 Beyond intention 46 3.5 Forms of uncertainty 46 3.6 Degrees of uncertainty 48 3.7 Subject matter 49 3.7.1 Intangible and fungible property 51 3.7.2 ‘Floating’ trusts 53 3.8 Objects 54 3.8.1 Fixed trusts 54 3.8.2 Discretionary trusts and powers of appointment 56 3.8.3 Applying the ‘is or is not’ test 57 3.9 Administrative unworkability 60 3.10 Capriciousness 61 3.11 Resolving uncertainty 62 3.12 Consequences of uncertainty 64 Summary 65 Exercises 66 Further reading 67 4 Purpose trusts 68 4.1 The beneficiary principle 68 4.2 Justifying the rule 68 4.3 Enforceability 69 4.3.1 Who can enforce trusts? 69 4.3.2 Must trusts be enforceable? 71 4.4 Beneficiaries and the nature of trusts 72 4.5 The impact of the rule 73 4.6 Purpose trusts and ‘persons’ trusts 74 4.7 Exceptions to the rule 76 4.7.1 Anomalous purpose trusts 76 4.7.2 The trust in Re Denley 77 4.8 Other requirements of purpose trusts 79 4.9 Unincorporated associations 80 4.10 How unincorporated associations hold property 81 4.10.1 The contract holding theory 81 4.10.2 Changing membership 82 4.10.3 Varying the contract 83 4.11 Transfers to unincorporated associations 83 4.11.1 Satisfying the beneficiary principle 85 4.12 The dissolution of unincorporated associations 87 4.13 Political parties 90 4.14 A role for purpose trusts? 91 Copyrighted material – 9781137606723 Copyrighted material – 9781137606723 Contents vii Summary 92 Exercises 93 Further reading 94 5 Charitable trusts 95 5.1 Charitable purposes 95 5.2 Charity, trusts and the law 95 5.3 Defining charitable purposes 97 5.4 The Charities Act 2011 98 5.5 The prevention or relief of poverty 99 5.6 The advancement of education 100 5.7 The advancement of religion 102 5.8 The advancement of health and the saving of lives 104 5.9 The advancement of citizenship or community development 104 5.10 The advancement of arts, culture, heritage or science 105 5.11 The advancement of amateur sport 105 5.12 The advancement of human rights, conflict resolution or reconciliation, or the promotion of religious or racial harmony or equality and diversity 106 5.13 The advancement of environmental protection or improvement 106 5.14 The relief of those in need by reason of youth, age, ill-­health, disability, financial hardship or other disadvantage 107 5.15 The advancement of animal welfare 107 5.16 The promotion of the efficiency of the armed forces of the Crown, or of the efficiency of the police, fire and rescue services or ambulance services 108 5.17 Other purposes 108 5.18 The public benefit requirement 110 5.19 Public benefit and personal nexus 114 5.19.1 Poverty 115 5.19.2 Education 116 5.19.3 Other charitable trusts 117 5.20 Trusts for political purposes 118 5.21 The cy-près doctrine 119 5.21.1 Initial failure 122 5.21.2 Subsequent failure 124 5.21.3 The meaning of impossibility and impracticability 125 Summary 126 Exercises 127 Further reading 127 6 Formalities 129 6.1 Requirements of form 129 6.2 Modes of beneficial transfer 130 6.3 Imperfect gifts 132 6.3.1 The rule in Re Rose 133 6.3.2 Unconscionability 135 6.3.3 The rule in Strong v Bird 137 6.3.4 Donationes mortis causa 138 6.3.5 Proprietary estoppel 138 Copyrighted material – 9781137606723 Copyrighted material – 9781137606723 viii Contents 6.4 Trusts of land 139 6.4.1 A rule of validity or evidence? 140 6.4.2 Fraud 141 6.5 Secret trusts 142 6.5.1 Fully and half secret trusts 143 6.5.2 Explaining secret trusts 145 6.5.3 Fraud 145 6.5.4 The ‘dehors the will’ theory 147 6.5.5 Are secret trusts unprincipled? 148 6.5.6 Requirements of secret trusts 149 6.5.7 Certainty 149 6.5.8 Communication and acceptance 151 6.5.9 Failure of secret trusts 153 6.6 Dispositions of equitable interests 154 6.6.1 Reasons for formality 154 6.6.2 Direction to the trustee to hold on trust for another 155 6.6.3 Direction to the trustee to transfer the property to another outright 157 6.6.4 Declarations of trusts of equitable interests 160 6.6.5 Disclaimers and surrenders 162 6.6.6 Specifically enforceable contracts to dispose of equitable interests 162 Summary 163 Exercises 165 Further reading 165 7 Constitution and promises to create trusts 166 7.1 The constitution of trusts 166 7.2 Trusts of future property 167 7.3 Promises to create trusts 167 7.3.1 Enforcing promises at common law 168 7.3.2 The Contracts (Rights of Third Parties) Act 1999 170 7.4 Trusts of covenants 170 7.5 Fortuitous vesting of trust property 173 Summary 174 Exercises 174 Further reading 174 8 Resulting trusts 175 8.1 The nature of resulting trusts 175 8.2 The traditional instances of resulting trusts 175 8.3 Presumed resulting trusts 176 8.3.1 Rebutting the presumption 177 8.3.2 The role and significance of presumptions 178 8.4 Resulting trusts and illegality 181 8.5 The content of the presumption 183 8.5.1 Two views of the presumption 184 8.5.2 A presumption of common intention? 185 8.5.3 A third view of the presumption 186 8.6 Automatic resulting trusts 188 Copyrighted material – 9781137606723 Copyrighted material – 9781137606723 Contents ix 8.7 Automatic resulting trusts and intention 189 8.8 The basis of automatic resulting trusts 191 8.8.1 Proprietary arithmetic 191 8.8.2 Unjust enrichment 192 8.9 Trusts to reverse unjust enrichment 193 8.10 Unjust enrichment, insolvency and proprietary claims 195 8.10.1 Justifying insolvency priority 196 8.10.2 Third-party recipients and trustee’s duties 197 8.11 The classification of trusts 198 8.12 Quistclose trusts 199 8.12.1 The analysis of Quistclose trusts 200 8.12.2 The classification of Quistclose trusts 203 Summary 204 Exercises 205 Further reading 205 9 Constructive trusts 207 9.1 Intention and constructive trusts 207 9.2 Constructive trusts and constructive trustees 209 9.3 A unifying theory of constructive trusts 209 9.4 Recipients of trust property 211 9.5 Specifically enforceable obligations to transfer specific property 212 9.6 Imperfect gifts and the rule in Re Rose 214 9.7 Oral trusts of land and the rule in Rochefoucauld v Boustead 214 9.8 Secret trusts 215 9.9 Property acquired subject to an undertaking 215 9.10 ‘Common intention’ trusts of the family home 217 9.10.1 Common intention proved by express discussion 219 9.10.2 Common intention inferred from conduct 222 9.10.3 Quantification of beneficial shares 225 9.10.4 Joint legal ownership 227 9.10.5 Inferred and imputed intentions 230 9.10.6 Context 234 9.10.7 Evaluation and reform 234 9.11 Mistaken transfers 238 9.12 Theft 240 9.13 Property acquired in breach of fiduciary duty 241 9.13.1 Two remedial options 242 9.13.2 Bribes and secret commissions 243 9.13.3 Wrongful gains by non-fiduciaries 246 9.14 Remedial constructive trusts 246 9.15 Rules and discretion 249 9.15.1 Rule-changing discretion 249 9.15.2 Rule-building discretion 250 9.15.3 Rule-rejecting discretion 251 Summary 252 Exercises 254 Further reading 254 Copyrighted material – 9781137606723 Copyrighted material – 9781137606723 x Contents 10 Fiduciary obligations 256 10.1 The variety of trustees’ duties 256 10.2 The sources of trustees’ duties 257 10.2.1 Intended trusts 257 10.2.2 Imposed trusts 258 10.3 Trustees de son tort 259 10.4 The content of fiduciary obligations 260 10.5 Securing performance 260 10.6 The rule against conflicts of interest 263 10.7 Relaxing the rule? 269 10.8 Payment 271 10.9 Directors’ fees 273 10.10 Self-dealing 274 10.11 Fair-dealing 275 10.12 Are all trustees fiduciaries? 276 10.13 Fiduciary obligations outside trusts 277 Summary 281 Exercises 282 Further reading 283 11 Non-fiduciary obligations 284 11.1 Beyond good faith 284 11.2 The duty of care 284 11.3 Investment of trust property 286 11.4 Investment criteria and advice 287 11.5 Even-handedness 289 11.6 Ethical investments 289 11.7 Majority shareholdings 291 11.8 An illustration 293 11.9 Rules governing the exercise of dispositive discretions 294 11.10 Rights to information 298 Summary 300 Exercises 300 Further reading 301 12 The administration of trusts 302 12.1 Introduction 302 12.2 The appointment
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