Trusts & EquityPub Date : 2020-04-24DOI: 10.1093/he/9780198804697.003.0007
Gary Watt
{"title":"7. Charity: trust creation and public policy II","authors":"Gary Watt","doi":"10.1093/he/9780198804697.003.0007","DOIUrl":"https://doi.org/10.1093/he/9780198804697.003.0007","url":null,"abstract":"This chapter explores how the creation of trusts is influenced by special considerations of public policy, focusing on charity that is beneficial to the public as opposed to illegality. Charity will render a purpose trust valid that the law of trusts would otherwise consider to be void. In contrast, illegality will sometimes render an interest or transaction void or unenforceable that the law of trusts and gifts would generally consider to be valid. After considering the creation of charitable trusts, the chapter also discusses charitable purposes and the public benefit as well as the administration of charitable trusts, before concluding by analysing their variation in accordance with the ‘cy-près’ doctrine.","PeriodicalId":275159,"journal":{"name":"Trusts & Equity","volume":"115 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126007854","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}
Trusts & EquityPub Date : 2020-04-24DOI: 10.1093/HE/9780198747635.003.0009
Gary Watt
{"title":"9. Flexibility of benefit","authors":"Gary Watt","doi":"10.1093/HE/9780198747635.003.0009","DOIUrl":"https://doi.org/10.1093/HE/9780198747635.003.0009","url":null,"abstract":"According to the so-called ‘rule in Saunders v. Vautier’, the beneficiaries of an expressly created private trust may terminate the trust if they are in unanimous agreement and are all competent adults, and are, between them, absolutely entitled to the trust property. This chapter examines the issue of ‘flexibility of benefit’, the extent to which beneficiaries may be able to take benefits under a trust despite limitations on their beneficial ownership, as well as the extent to which limitations on their beneficial ownership may be varied or entirely removed. It shows that under the Trustee Act 1925, trustees have a discretionary power—known as ‘the power of maintenance’—to apply income for the benefit of infant beneficiaries and a similar discretionary power, termed ‘the power of advancement’, to apply capital for the benefit of a beneficiary (infant or adult) out of his/her anticipated entitlement to the trust fund.","PeriodicalId":275159,"journal":{"name":"Trusts & Equity","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125116869","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}
Trusts & EquityPub Date : 2020-04-24DOI: 10.1093/HE/9780198804697.003.0004
Gary Watt
{"title":"4. Effective disposition of benefit: constitution of trusts","authors":"Gary Watt","doi":"10.1093/HE/9780198804697.003.0004","DOIUrl":"https://doi.org/10.1093/HE/9780198804697.003.0004","url":null,"abstract":"This chapter explains the reasons why a trust must be completely constituted in order to be valid and discusses the steps that must be taken in order to constitute a trust. Constitution matters because the beneficiaries of an incompletely constituted trust are ‘mere volunteers’ and therefore will not be assisted by equity. In other words, they do not have any rights in the trust property and thus cannot enforce the trust in court. Following the law, equity ‘will not assist a volunteer’ and ‘will not perfect an imperfected gift’. In order to have a ‘perfect’ gift, the donor must actually complete the disposition of the subject matter in favour of the intended donee or execute a formal ‘deed of gift’. The chapter also considers various modes of constitution of trusts, the court ruling in Strong v. Bird, and gifts made in contemplation of death.","PeriodicalId":275159,"journal":{"name":"Trusts & Equity","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128846287","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}
Trusts & EquityPub Date : 2020-04-24DOI: 10.1093/he/9780198804697.003.0006
Gary Watt
{"title":"6. Formality, perpetuity, and illegality: trust creation and public policy I","authors":"Gary Watt","doi":"10.1093/he/9780198804697.003.0006","DOIUrl":"https://doi.org/10.1093/he/9780198804697.003.0006","url":null,"abstract":"Trust property apparently belongs to the person who is not the true owner despite having all the forms and powers of ownership. Thus, a trust creates an illusion of ownership that may prejudice trade creditors when the trustee becomes insolvent and deceive the state’s tax collection agencies. However, there are a number of safeguards designed to prevent the undesirable creation and operation of trusts. For example, the disposition of equitable interests under trusts must be made in writing and the creation of trusts of land must be evidenced in writing. This chapter discusses the ways in which the creation of trusts is influenced by special considerations of public policy, focusing on formality, perpetuity, and illegality. It also considers rules against perpetuities—the rule against remoteness of vesting, the rule against inalienability of capital, and the rule against accumulation of income—and finally, looks at the Perpetuities and Accumulations Act 2009.","PeriodicalId":275159,"journal":{"name":"Trusts & Equity","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127070002","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}
Trusts & EquityPub Date : 2020-04-24DOI: 10.1093/he/9780198804697.003.0005
Gary Watt
{"title":"5. Ineffective disposition of benefit: resulting trusts","authors":"Gary Watt","doi":"10.1093/he/9780198804697.003.0005","DOIUrl":"https://doi.org/10.1093/he/9780198804697.003.0005","url":null,"abstract":"If the beneficial owner of an asset transfers the asset to another who does not give or promise anything in return, and where there is no evidence of any intention on the former’s part to make a gift or trust of the property, it is impossible to determine to whom the benefit of the asset belongs. In this case, the beneficial ownership of the asset is assumed to be held by the beneficiary for the owner under a resulting trust. The resulting trust is therefore a type of trust that arises when there is no express intention to create it. This chapter examines the ineffective disposition of benefit, focusing on the resulting trusts. It also discusses the established factual categories of the resulting trust, the theory behind resulting trusts, rebutting the presumption of a resulting trust, resulting trusts of surplus benefits, the Quistclose trust, and pension fund surpluses.","PeriodicalId":275159,"journal":{"name":"Trusts & Equity","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134253050","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}
Trusts & EquityPub Date : 2020-04-24DOI: 10.1093/he/9780198804697.003.0013
Gary Watt
{"title":"13. Breach of trust: the personal liability of trustees","authors":"Gary Watt","doi":"10.1093/he/9780198804697.003.0013","DOIUrl":"https://doi.org/10.1093/he/9780198804697.003.0013","url":null,"abstract":"The powers enjoyed by trustees are incidents of their legal ownership of the trust property, whereas their duties are incidents of their personal office. The beneficiary of any trust, even if it is a discretionary trust, has locus standi (which means ‘a place to stand’, used to describe a claimant’s right to be heard in a court of law) to bring an action against trustees for breach of trust. Common law concepts such as causation are increasingly being introduced to limit trustees’ liability for breaches of bare trusts in commercial contexts. This chapter examines the nature and potential extent of trustees’ liability for breach of their duties, along with the remedies that are available against trustees when they breach their trust. It also looks at defences that may be available to trustees in breach and, in the absence of defences, whether trustees may be relieved of personal liability.","PeriodicalId":275159,"journal":{"name":"Trusts & Equity","volume":"114 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117255512","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}
Trusts & EquityPub Date : 2016-03-01DOI: 10.1093/HE/9780198737650.003.0010
Gary Watt
{"title":"10. The fiduciary duty","authors":"Gary Watt","doi":"10.1093/HE/9780198737650.003.0010","DOIUrl":"https://doi.org/10.1093/HE/9780198737650.003.0010","url":null,"abstract":"The fiduciary duty is the defining duty of trusteeship and consists of several overlapping obligations intended to promote loyalty or faithfulness. As part of his fiduciary duty, the trustee should avoid conflict with the interests of the trust and not to make an unauthorised unauthorized profit from the trust property, or from his position of trust. The fiduciary duty may also apply to a person who is not a trustee, in which case he is said to be a fiduciary. This chapter examines the principal obligations of trusteeship and the implications of breach of those obligations for trustees, beneficiaries, and third parties. It first discusses the strict rule of exemplary fiduciary propriety before turning to the duty of good faith. The chapter also looks at fiduciary relationships and fiduciary duties, the fiduciary duty to avoid conflicts of interest, the fiduciary duty to account for unauthorised unauthorized profits, and trustee remuneration.","PeriodicalId":275159,"journal":{"name":"Trusts & Equity","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117257725","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}
Trusts & EquityPub Date : 2016-03-01DOI: 10.1093/HE/9780198737650.003.0002
Gary Watt
{"title":"2. Trusts in context","authors":"Gary Watt","doi":"10.1093/HE/9780198737650.003.0002","DOIUrl":"https://doi.org/10.1093/HE/9780198737650.003.0002","url":null,"abstract":"This chapter places trusts in their contemporary social, economic, legal, and international context. It first discusses their significance to the world outside the lawyer’s office, and shows that they play an important social and economic role in the lives of ordinary people. The trust operates in key areas such as home, employment, and commerce. The chapter also examines the trust in the context of laws, focusing on how it corresponds to, and coexists with, other legal ideas such as contract, debt, powers, gift, agency, bailment, tax, and corporation, and concludes by looking at the international and comparative dimension of the trust.","PeriodicalId":275159,"journal":{"name":"Trusts & Equity","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129363729","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}
Trusts & EquityPub Date : 2016-03-01DOI: 10.1093/he/9780198737650.003.0003
Gary Watt
{"title":"3. Trusts created expressly","authors":"Gary Watt","doi":"10.1093/he/9780198737650.003.0003","DOIUrl":"https://doi.org/10.1093/he/9780198737650.003.0003","url":null,"abstract":"A person can make a conditional gift or make a gift subject to a charge. One example of an expressly created trust is a transfer of property to one person on trust for another. That property owners can dispose of their property as they choose can be a source of great uncertainty. ‘Three certainties’ must be satisfied before a court will acknowledge that a settlor or testator has created a private express trust: certainty of intention to create a trust, certainty as to the subject (property) of the trust, and certainty as to the object (beneficiaries or purposes) of the trust. This chapter, which deals with expressly created trusts, first considers the capacity to create a trust before turning to trusts established for private purposes, donations to unincorporated associations, and the construction of dispositions.","PeriodicalId":275159,"journal":{"name":"Trusts & Equity","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127143835","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}
Trusts & EquityPub Date : 2016-03-01DOI: 10.1093/he/9780198737650.003.0011
Gary Watt
{"title":"11. Fulfilling and filling the office of trustee","authors":"Gary Watt","doi":"10.1093/he/9780198737650.003.0011","DOIUrl":"https://doi.org/10.1093/he/9780198737650.003.0011","url":null,"abstract":"As the legal owners of trust property, trustees enjoy all the legal powers of an absolute owner, including the power to sell, lease, mortgage, and otherwise manage and invest trust assets. However, trusteeship involves not only holding property belonging to another, but also the responsibility of managing trust property in accordance with the terms of the trust instrument and the general law. This chapter examines the duty of care and the duty to exercise a sound discretion in the context of trustee investment, arguing that the office of trustee must be filled if it is to be fulfilled. It also discusses the many different ways in which the law maintains a fine balance between the strict enforcement of trust duties and the need to attract persons to accept trust office. Furthermore, the chapter describes the duty to act fairly and the duty of personal service.","PeriodicalId":275159,"journal":{"name":"Trusts & Equity","volume":"211 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113995911","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}