Equity and Trusts (England and Wales) - Essay Example

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Equity and Trusts Essay 2 Davina The gifts of 200,000 pounds and the cottage to Davina will constitute trust property if the disposition of the gifts to Tilda for Davina and her children satisfies the three certainties: intention, object and subject.1 Certainty of intention refers to the settlor’s intention to create a trust…
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Download file to see previous pages d her children in equal shares. Thus there can be no doubt that Sir Clarence intended to create a trust out of the transfer of the property/gifts to Tilda. In order to give effect to Sir Clarence’s intention to create a trust, certainty of subject and object must be satisfactorily established.4 In this regard, certainty of subject matter is sufficiently established if the property transferred or to be transferred to the trust can be identified and administratively workable.5 The sum of money transferred to Tilda to administer is specific and certainly capable of division and is thus identifiable and readily administrable. Since the seaside property was transferred to Tilda, the seaside cottage is likewise identifiable and administrable. Certainty of objects is established if the words used to describe the beneficiaries are sufficient for the courts or the trustees to identify and administer the trust among specific beneficiaries or a class of beneficiaries.6 In a discretionary trusts, the trustees need only be able to identify by virtue of an in or out test, who the beneficiaries are. However with a fixed trust, as this particular trust appears to be, the trustees must be in a position to draw up a complete list of all of the beneficiaries.7 Even so the in or out test will be effective for determining who Davina’s children are. It is also possible to draw up a complete list of the beneficiaries. Therefore whether or not the trust is discretionary or a fixed trust, certainty of objects can be established. Tilda, who is Sir Clarence’s friend should certainly be able to identify Davina and her children. Likewise the courts can easily identify who Davina’s children are as births are a matter of public record. Thus far it has been established that the three certainties have been satisfied in the gifts to Davina and her children. However, the disposition of the freehold in the cottage to Tilda upon trust for Davina and her children cannot be enforced unless it meets the formal requirements for the disposition of an equitable interests in land pursuant to Section 53(1)(c) of the Law of Property Act, 1925. Section 53(1)(c) of the Law of Property Act 1925 provides that the disposition of an equitable interests in land must be evidenced in writing.8 It therefore follows that while the gift of 200,000 pounds forms the subject of a valid trust, the seaside cottage does not since it does not meet the requirements of Section 53(1)(c) of the Law of Property Act, 1925. Therefore the principle of resulting trusts is relevant. A resulting trust will arise to essentially transfer the property back to Sir Clarence. This is possible because the resulting trust functions to give effect to that which is conscionable.9 In particular a resulting trust will arise when both the trustee and the settlor agreed and know that the settlor never intended to transfer the property to the trustee absolutely or the trustee treats the property in a way that does not correspond with the settlor’ ...Download file to see next pagesRead More
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