Equity and Trusts

268 Pages·2014·3.03 MB·English

by  Chris Turner

KEY FACTS KEY CASES

Equity & Trusts

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KEY FACTS KEY CASES

The Key Facts Key Cases revision series is designed to give you a clear
understanding and concise overview of the fundamental principles of your
law course. The books’ chapters refl ect the most commonly taught topics,
breaking the law down into bite-s ize sections with descriptive headings.
Diagrams, tables and bullet points are used throughout to make the law easy
to understand and memorise, and comprehensive case checklists are provided
that show the principles and application of case law for your subject.
Titles in the series:
Contract Law
Criminal Law
English Legal System
Equity & Trusts
EU Law
Family Law
Human Rights
Land Law
Tort Law
For a full listing of the Routledge Revision range of titles, visit
www.routledge.com/law
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KEY FACTS KEY CASES

Equity & Trusts

Chris Turner and Judith Bray
Routledge
Taylor & Francis Group
LONDON AND NEW YORK
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First edition published 2014
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2014 Chris Turner and Judith Bray
The right of Chris Turner and Judith Bray to be identifi ed as authors of this work has been
asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents
Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form
or by any electronic, mechanical, or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or retrieval system, without
permission in writing from the publishers.
Trademark notice : Product or corporate names may be trademarks or registered trademarks,
and are used only for identifi cation and explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
A catalog record for this book has been requested
ISBN: 978–0–415–83327–1 (pbk)
ISBN: 978–1–315–85784–8 (ebk)
Typeset in Helvetica
by Refi neCatch Limited, Bungay, Suffolk
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Contents
PREFACE ix
TABLE OF CASES xii
Chapter 1
INTRODUCTION TO EQUITY & TRUSTS 1
1.1 A brief history of equity 2
1.2 The basic character of a trust 8
Key Cases Checklist 12
Chapter 2
THE CREATION OF EXPRESS PRIVATE TRUSTS 15
2.1 Capacity and the creation of trusts 16
2.2 Formalities – general 16
2.3 Trusts of land 16
2.4 Dispositions of existing equitable interests 17
2.5 Formality and fraud 18
2.6 The three certainties 18
Key Cases Checklist 22
Chapter 3
PURPOSE TRUSTS 40
3.1 Non- charitable purpose trusts 41
3.2 The rules on unincorporated associations 44
Key Cases Checklist 47
Chapter 4
CONSTITUTION OF TRUSTS 56
4.1 General 57
4.2 Formalities 57
4.3 Declaration of self as trustee 58
4.4 Enforcement of trusts – volunteers and non- volunteers 58
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vi Contents
4.5 Exceptions to the rule that equity will not assist a volunteer 59
Key Cases Checklist 60
Chapter 5
SECRET TRUSTS 71
5.1 The background to secret trusts 72
5.2 The rules governing fully secret trusts 72
5.3 The rules governing half secret trusts 73
5.4 The theoretical basis of secret trusts 74
Key Cases Checklist 76
Chapter 6
PROTECTIVE AND DISCRETIONARY TRUSTS 82
6.1 Protective trusts 82
6.2 Discretionary trusts 82
Key Cases Checklist 84
Chapter 7
RESULTING TRUSTS AND
CONSTRUCTIVE TRUSTS 86
7.1 Introduction 87
7.2 Resulting trusts 87
7.3 Constructive trusts 93
7.4 Trusts of the family home 98
Key Cases Checklist 103
Chapter 8
CHARITABLE TRUSTS 126
8.1 The history of the charitable trust 127
8.2 The difference between charitable trusts and other trusts 128
8.3 Essential requirements of charitable trusts 128
8.4 Charitable objects 129
8.5 The political element 135
8.6 The public benefi t element 135
8.7 Exclusivity of charitable objects 136
8.8 The basis of the c y-p rès doctrine at common law 137
8.9 Initial failure 137
8.10 Subsequent failure 138
8.11 Non- charitable alternatives 139
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Contents vii
8.12 Statutory cy- près 140
Key Cases Checklist 142
Chapter 9
THE NATURE OF TRUSTEESHIP 157
9.1 Who can be a trustee? 158
9.2 The number of trustees 159
9.3 Appointment of trustees 159
9.4 Selection of trustees 160
9.5 The vesting of the trust property 160
9.6 Termination of trusteeship 160
9.7 Standard of conduct expected of trustees 161
Key Cases Checklist 163
Chapter 10
THE DUTIES OF THE TRUSTEES 165
10.1 The trustees’ duties to the trust property 166
10.2 The duty to invest 167
10.3 The trustees’ duties to the benefi ciaries 172
10.4 The fi duciary nature of trusteeship 174
Key Cases Checklist 177
Chapter 11
THE POWERS OF TRUSTEES 187
11.1 Introduction 188
11.2 Trustees of land under the Trusts of Land and
Appointment of Trustees Act 1996 189
11.3 General powers 189
11.4 The power to delegate 191
11.5 Powers of maintenance and advancement 192
Key Cases Checklist 197
Chapter 12
VARIATION OF TRUSTS 198
12.1 The need for variation 199
12.2 Variation under the inherent jurisdiction of the courts 199
12.3 Variation under statutory provisions 199
12.4 Variation under the Variation of Trusts Act 1958 200
Key Cases Checklist 202
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viii Contents
Chapter 13
BREACH OF TRUST AND REMEDIES 208
13.1 Breach of trust and liability 209
13.2 Personal remedies and proprietary remedies 209
13.3 Equitable remedies – injunctions 213
13.4 Equitable remedies – specifi c performance 216
13.5 Equitable remedies – rescission 218
13.6 Equitable remedies – rectifi cation 218
Key Cases Checklist 219
INDEX 231
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Preface
This new series of Key Facts Key Cases is built on the two well- known
series, Key Facts and Key Cases. Each title in the Key Facts series now incor-
porates a Key Cases section at the end of most chapters which is designed to
give a clear understanding of important cases. This is useful when studying a
new topic and invaluable as a revision aid. Each case is broken down into fact
and law. In addition many cases are extended by the use of important extracts
from the judgment, by a commentary or by highlighting problems. In some
instances students are reminded that there is a link to other cases or material.
If the link case is in another part of the book, the reference will be clearly
shown. Some links will be to additional cases or materials that do not feature
in the book.
The basic Key Facts sections are a practical and complete revision aid that
can be used by students of law courses at all levels from A Level to degree
and beyond, and in professional and vocational courses. They are designed to
give a clear view of each subject. This will be useful to students when tack-
ling new topics and is invaluable as a revision aid.
Most chapters open with an outline in diagram form of the points covered in
that chapter. The points are then developed in a structured list form to make
learning easier. Supporting cases are given throughout by name, and for
some complex areas facts are given to reinforce the point being made. The
most important cases are then given in more detail.
The Key Facts Key Cases series aims to accommodate the syllabus content of
most qualifi cations in a subject area, using many visual learning aids.
The topics covered for Equity and Trusts include all of those contained in
mainstream syllabuses. Equity and Trusts is often seen as a fairly dry and dull
area. In fact it is actually more relevant to most people’s lives than, for
example, Criminal Law, which is a very popular area of study. Anyone who
jointly owns a domestic home or who wants to leave property in a will to
underage children, who has anything to do with charity work or who has a
private pension, for instance, would be able to identify what a very practical
and useful subject it is.
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