LEVEL 6 – UNIT 5 – EQUITY AND TRUSTS SUGGESTED ANSWERS – JANUARY 2017 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 2017 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 Section 53(1)(c) of the Law of Property Act (‘LPA’) 1925 provides that a disposition of a subsisting equitable interest must be in writing and signed by the person disposing of the same or by that person’s agent lawfully authorised in writing. The key question is whether there is a disposition of a subsisting equitable interest. There have been many cases where the parties have tried to transfer equitable interests orally to avoid stamp duty. Oral transfers are effective only if there is no ‘disposition of a subsisting equitable interest’. The test seems to be whether an equitable interest which existed before the transfer still exists but in the hands of another. The most straightforward case is where a beneficiary under a trust (X) transfers his or her equitable interest directly to another (Y). This amounts to a disposition of X’s equitable interest because the equitable interest continues to exist but ownership has changed from X to Y. Section 53(1)(c) applies and the transaction is void unless the transfer is in writing signed by X or X’s agent. Section 53(1)(c) does not apply where a legal owner declares a new trust over property because this involves the creation of a new equitable interest as opposed to the disposition of a subsisting equitable interest. The question whether there had been a disposition of an equitable interest arose in Grey v IRC (1960). Trustees held property on a bare trust for X. X asked the trustees to hold the property on trust for Y. It was held that this was an attempted disposition for the purposes of s53(1)(c); the equitable interest existed before the transaction and it was intended that the ownership would change from X to Y. In Vandervell v IRC (1967) the House of Lords decided that s53(1)(c) did not apply where the legal and equitable titles were transferred together. Trustees Page 1 of 15 held shares on a bare trust for Mr Vandervell. At his direction, the trustees transferred the legal title to the shares to a charity. It was held that s53(1)(c) did not apply; Mr Vandervell’s equitable interest passed with the legal title automatically without the need for a written document. Although the equitable interest existed before the transaction, it did not exist separately after the transaction because the legal and equitable interests were reunited in the charity. In a further development of the Vandervell litigation, it was held that the extinction of a resulting trust was not a disposition of an equitable interest and was therefore, outside s53(1)(c). Difficult questions of interpretation can arise if beneficiaries declare themselves trustees of their equitable interests. Suppose that A, a beneficiary under a trust, declares that he is holding his equitable interest on trust for B. This may amount to a disposition of A’s equitable interest. It depends on whether A retains active duties as a trustee of the sub-trust. If A stays in the picture with active duties to perform as a trustee of the sub- trust, there has been no disposition of A’s equitable interest and s53(1)(c) is not applicable. The declaration of trust can be oral. On the other hand, if A has no active duties to perform as trustee of the sub- trust, A drops out of the picture and the original trustees hold on trust directly for B. In this case, A has made a disposition of A’s equitable interest and s53(1)(c) applies (Grainge v Wilberforce (1889)). In Re Holt’s Settlement (1969) it was held that a variation of beneficial interests by the court under the Variation of Trusts Act 1958 did not fall within s53(1)(c). In Re Danish Bacon Co (1971) it was doubted whether an employee nominating a person to receive a benefit under a pension scheme was making a disposition of an equitable interest. In Gold v Hill (1999) nominating a person as a beneficiary of a life assurance policy did not transfer an interest until death and therefore there was no disposition of a subsisting equitable interest under s53(1)(c). Contracts to transfer equitable interests have given rise to much debate. Some contracts are enforceable by specific performance. If the contract is specifically enforceable, ‘Equity regards that as done which ought to be done’ and the equitable interest in the property passes to the purchaser under a constructive trust when the contract is made. Section 53(2) LPA 1925 provides that nothing in s53(1) affects the creation or operation of inter alia constructive trusts. In Oughtred v IRC (1960), Mrs Oughtred orally agreed to transfer some shares to her son, P, in exchange for P transferring his equitable interest in another shareholding to her. In the House of Lords, Lord Radcliffe suggested that the equitable interest in the shares had passed to Mrs Oughtred by virtue of a constructive trust as the contract was specifically enforceable. This view was followed in Neville v Wilson (1996). In conclusion, a disposition of an equitable interest occurs where an equitable interest existed separately before the transaction and still exists separately after the transaction but it has different owners before and after the transaction. Section 53(1)(c) does not apply where there is no separate equitable interest before the transaction (as in a declaration of trust). Further, it does not apply if, after the transaction, the equitable interest does not continue to exist independently (as in Vandervell v IRC where the equitable interest was merged Page 2 of 15 in the legal title). Constructive trusts appear to provide the means to avoid the formalities of s53(1)(c). Question 2 Trustees owe fiduciary duties not to put themselves in a position where their personal interest might conflict with their duty to the trust. They must not make a personal profit unless authorised to do so. The court will order trustees to surrender any profit without enquiring into the circumstances of the case. The strict liability of fiduciaries has been the subject of criticism on the grounds that it is unfair to penalise honest trustees in the same way as guilty trustees and that the strict rule may discourage people from accepting the post. Boardman v Phipps (1967) was an example of the application of strict liability. The trust property included a substantial shareholding in a private company. Mr Boardman (the trust’s solicitor) decided to investigate the affairs of the company initially on behalf of the trust. He gained useful information about the company by purporting to represent the trust. Subsequently, with the knowledge of the active trustees, Mr Boardman purchased shares in the company with his own funds on his own account. Through skilful management he was able to reorganise the company and make large distributions to all shareholders, including the trust. By a bare majority, the House of Lords held that the Mr Boardman had to account to the trust for his profits. The majority held that he was liable because he had profited from information which came to him in his fiduciary position. A further ground for the decision was that, had he been asked to advise whether the trustees should obtain a court order allowing them to buy the shares for the trust, he would have had a conflict of interest. The slightest possibility of a conflict was sufficient to make the trustees accountable; it did not matter that the possibility was extremely remote. Mr Boardman had to surrender his shares and profit after being reimbursed with the purchase price. The decision in Boardman might be considered rather harsh. The defendant had been honest. An active trustee gave evidence that he would not have invested trust money in additional shares and therefore, the possibility of a conflict of interest was extremely unlikely. The trust suffered no loss and actually benefited from the distributions which the company made as a result of the defendant’s reorganisation. Nevertheless, the defendant had to surrender his profit to the trust. Wright v Morgan (1926) is a further example of the harsh operation of the rule; the conflict of interest arose because a trustee purchased trust property; the beneficiaries were allowed to avoid the transaction at a later date despite the fact that the trustee had paid the full market price. As was the case in Boardman v Phipps, it was irrelevant that the beneficiaries had suffered no loss. In Keech v Sandford (1726), the court justified the strict approach by saying that it is difficult for the courts to ascertain whether trustees have been honest and whether the trust could have secured the profit had it been given the opportunity. It has also been argued that strict liability does not prevent honest fiduciaries from making a personal profit; trustees, for example, can obtain the consent of the beneficiaries (assuming all the beneficiaries are adults) or the court or settlors may grant powers for trustees to make profits in the trust instrument.