{"title":"13. The Administration of Trusts","authors":"Graham Virgo","doi":"10.1093/HE/9780198726180.003.0013","DOIUrl":"https://doi.org/10.1093/HE/9780198726180.003.0013","url":null,"abstract":"This chapter examines the natures of trustees’ duties and power related to the administration of trusts. It considers the sources of these duties and powers, the function of the trust instrument in the interpretation of these duties and powers, and the issue of breach of trust. It describes the trustees’ power to compound liabilities, to settle claims and accumulate income. This chapter also discusses some of the main duties of trustees which include the duty of care, the duty to safeguard the trust property, and the duty to maintain a fair balance between the beneficiaries. The duty to invest property is considered in some detail, with particular reference to the need to manage risk through a diverse portfolio and consideration of whether ethical considerations can be taken into account when selecting investments.","PeriodicalId":181437,"journal":{"name":"The Principles of Equity & Trusts","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128514410","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"5. Formalities","authors":"Graham Virgo","doi":"10.1093/he/9780198804710.003.0005","DOIUrl":"https://doi.org/10.1093/he/9780198804710.003.0005","url":null,"abstract":"This chapter examines the processes for creating an express trust, which involves two processes. The first involves possible formality requirements relating to the creation of the trust itself, particularly involving trusts of land and testamentary trusts. It also considers how a trust may be valid despite failure to satisfy these requirements, notably where a statute is being used as an instrument of fraud or where a secret trust is recognized. The second process involves the formality requirements which need to be satisfied to ensure that title to property is vested in the trustees, so that the trust is constituted. Constitution of the trust is considered where a settlor declares themself as a trustee and where another party is declared as a trustee. The chapter also examines when Equity may intervene where a trust has not been properly constituted or where a gift has not been validly transferred to a donee.","PeriodicalId":181437,"journal":{"name":"The Principles of Equity & Trusts","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121587313","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"6. Charitable Trusts","authors":"Graham Virgo","doi":"10.1093/he/9780198726180.003.0006","DOIUrl":"https://doi.org/10.1093/he/9780198726180.003.0006","url":null,"abstract":"This chapter examines charitable trusts in England. It discusses the advantages and disadvantages of being a charitable trust and explains the conditions that must be met in order for a trust to be considered charitable. The chapter considers the different meaning of a charitable purpose as it has been defined in cases and by statute, such as for the advancement of education or religion and the relief of poverty. It examines the meaning of the public benefit requirement and also considers the requirements that purposes must be exclusively charitable. This chapter also considers the cy-près doctrine which applies where a charitable purpose has failed initially or subsequently.","PeriodicalId":181437,"journal":{"name":"The Principles of Equity & Trusts","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114795218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"2. The Characteristics of Equity","authors":"Graham Virgo","doi":"10.1093/he/9780198726180.003.0002","DOIUrl":"https://doi.org/10.1093/he/9780198726180.003.0002","url":null,"abstract":"This chapter analyses the essential characteristics of Equity. It identifies fourteen maxims that are useful and relevant today as guidelines for the operation of the equitable jurisdiction. The most important of the maxims are examined in some detail, namely that Equity is discretionary and is triggered by unconscionability. The meaning of discretion and the contemporary relevance of conscience and unconscionability are examined. Other maxims include that Equity will treat as done that which ought to be done and Equity responds to cynical conduct. This chapter explains the principles underlying these maxims and suggests that they are often subject to exceptions and sometimes it may even be necessary to redefine them to ensure that they are fit for purpose today.","PeriodicalId":181437,"journal":{"name":"The Principles of Equity & Trusts","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114785683","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"14. Dispositive Powers and Duties","authors":"Graham Virgo","doi":"10.1093/he/9780198726180.003.0014","DOIUrl":"https://doi.org/10.1093/he/9780198726180.003.0014","url":null,"abstract":"This chapter examines the powers and duties of trustees relating to the distribution of trust property to beneficiaries or objects. It explains that dispositive powers enable the trustees to exercise a discretion relating to the distribution of trust assets and dispositive duties requires them to act in a particular way or to make a particular decision. This chapter also discusses the underlying principles of the duty to distribute and the powers of appointment, maintenance, and advancement. The chapter further considers a variety of principles which are applicable to determine how powers of appointment should be exercised, what happens when the power is not exercised properly, and mechanisms to assist trustees in the exercise of these powers.","PeriodicalId":181437,"journal":{"name":"The Principles of Equity & Trusts","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123330624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"7. Non-Charitable Purpose Trusts","authors":"Graham Virgo","doi":"10.1093/HE/9780198726180.003.0007","DOIUrl":"https://doi.org/10.1093/HE/9780198726180.003.0007","url":null,"abstract":"This chapter examines the concept of the non-charitable purpose trust. It explains that non-charitable purpose trusts are generally considered void by virtue of failing to comply with the beneficiary principle. It describes exceptional conditions under which non-charitable purpose trusts are considered valid, such as trusts of an imperfect obligation, and discusses mechanisms for the implementation of non-charitable purposes. This chapter also considers the peculiar problems arising where property is transferred for the benefit of unincorporated associations and how Equity has provided solutions for property-holding by such associations and why the nature of property-holding for unincorporated associations has proved to be significant where the association is dissolved.","PeriodicalId":181437,"journal":{"name":"The Principles of Equity & Trusts","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129291952","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"4. The Requirements of an Express Trust","authors":"Graham Virgo","doi":"10.1093/he/9780198726180.003.0004","DOIUrl":"https://doi.org/10.1093/he/9780198726180.003.0004","url":null,"abstract":"This chapter examines some of the requirements for the creation of an express trust. These include certainty of intention to create a trust, certainty of identifiable subject matter, certainty of objects, the beneficiary principle, and the perpetuity rule. This chapter explains that the creator of the trust, whether an inter vivos or testamentary trust, is given a great deal of flexibility as to the terms and operation of the trust. The chapter examines when a trust may be invalid, particularly for failure to comply with the certainty requirements, why the certainty requirements have been recognized, and how the operation of these requirements may be satisfied through careful construction of the trust instrument. The chapter also considers when the creation of the trust can be considered to be an abuse of trust.","PeriodicalId":181437,"journal":{"name":"The Principles of Equity & Trusts","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115980829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"1. An Introduction to Equity","authors":"P. Davies, Graham Virgo, E. Burn","doi":"10.1093/he/9780198727651.003.0001","DOIUrl":"https://doi.org/10.1093/he/9780198727651.003.0001","url":null,"abstract":"This chapter introduces the nature of Equity. It provides a legal definition of Equity and offers a background of its history from the Middle Ages. It discusses the contemporary contribution of Equity to English law in a variety of different contexts, particularly in the commercial sphere. The chapter also examines fundamental feature of Equity, which is the division between the recognition and protection of property rights and personal rights. This chapter explains that Equity is not an independent system of law, but it has a distinct identity and function to modify the rigours of the Common Law and to create rights.","PeriodicalId":181437,"journal":{"name":"The Principles of Equity & Trusts","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126731249","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"18. Personal Claims and Remedies","authors":"P. Davies, Graham Virgo, E. Burn","doi":"10.1093/HE/9780198727651.003.0017","DOIUrl":"https://doi.org/10.1093/HE/9780198727651.003.0017","url":null,"abstract":"This chapter examines the personal liability of a trustee or fiduciary in cases of a breach of trust or fiduciary duty. It analyses the personal remedies that may be available where the defendant has breached the trust or breached fiduciary duties and discusses the advantages and disadvantages in claiming personal or proprietary remedies. The chapter focuses on the nature and function of personal remedies to reconstitute the trust following breach of trust, by means of falsification of the account. It also considers the remedies of surcharging the account, account of profits and equitable compensation. The role of the equitable allowance is also considered.","PeriodicalId":181437,"journal":{"name":"The Principles of Equity & Trusts","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127326018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"19. Proprietary Claims and Remedies","authors":"Graham Virgo","doi":"10.1093/HE/9780198726180.003.0019","DOIUrl":"https://doi.org/10.1093/HE/9780198726180.003.0019","url":null,"abstract":"This chapter examines the proprietary claims and remedies relevant to a breach of trust or fiduciary duty by a trustee or fiduciary. It explains that a proprietary claim in Equity requires the claimant to show that the defendant has received an asset in which the claimant has an equitable proprietary interest while a proprietary remedy enables the claimant to assert proprietary rights against property that is in the defendant's possession. This chapter also proposes a framework for understanding the law relating to proprietary claims and describes different types of remedy that are available with respect to equitable proprietary claims, specifically the recognition that property is held on constructive trust, the equitable lien, and the remedy of subrogation.","PeriodicalId":181437,"journal":{"name":"The Principles of Equity & Trusts","volume":"22 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120823028","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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