Consideration of the Law of Equity - Math Problem Example

Title: Equity Law Customer Inserts His/her Name Customer Inserts Name of Tutor Customer Inserts Grade/Course (Date) Question 1. Is the TPLFA entitled to the $35,000 as the assignee of the litigation? Third Party Litigation Funding is the new trend in the civil justice system. Third Party Litigation Funding involves a situation where a third party agrees to invest in litigation by covering all litigation costs in exchange for a particular share of the proceeds in case of a successful suit and nothing if the suit is lost.1The rights of a plaintiff are regarded as property rights in litigation and the plaintiff has possessory rights in the litigation as well as the right to transfer. The plaintiff can thus transfer part or all of her rights in the litigation. Plaintiffs may transfer their rights to third parties in exchange of the consideration of having the litigation risk reduced. Assignment of litigation claims places the third party in a similar position to the plaintiff who had filed the lawsuit. In assignment of claims, the claim holder sells the litigation to a third party who acquires the right to pursue the claim against the defendant. In Third Party Litigation Funding, the possessory rights of the plaintiff are not transferred to the third party; the role of the third party is limited to mere funding. The third party therefore receives only a certain percentage of the award. Third Party Litigation emerged in Australia in the early 1990s. It was only applied in cases where the plaintiff faced the risk of insolvency. In Australia, champerty and maintenance were crimes and torts in all jurisdictions2. Today, champerty and maintenance have been abolished by statutes in Victoria, South Australia, New South Wales, and Capital Territory. Third Party Litigation Agreements are however set aside by courts if they are found to be inconsistent with the law. Assignment of a legal claim to a third party litigation funder amounts to transfer of the plaintiff’s rights to the claim. The effect of assignment is that ownership of the rights is passed from the assignor to the assignee. The effect of complete assignment is that the assignor loses interest in the legal claim. If the assignor maintains some form of ownership over the claim, there can be no assignment; only a disposition of the claim. Assignments of rights results in creation of private trusts3. If the subject matter of a trust is assigned by a settler to a trustee, the legal interest vests in the trustee while the equitable interest vests with the beneficiary. If the creator of the trust declares himself or himself to be the trustee then he or she owns the legal interest while the equitable interest vests with the beneficiary. Assignments are recognizable at both equity and common law. An assignment is legal if it is recognized by a statute or by common law. The assignee of rights to litigate must reimburse all the costs that the assignor had incurred before transferring the rights. In Hembleton V Brown4, it was held that the claim to recover future settlement is can only be assigned equitably. For legal assignments, the assignor’s interests in the cause of action ceases and the assignee can file the suit in his own name. In case of an equitable assignment, the assignor only becomes a party to the suit and is a co-claimant since the assignee retains the legal rights to the claim5. The assignor continues to have an interest in the proceedings and is entitled to a portion of the settlement. In the case of an equitable assignment, the assignee is merely conjoined while in the case of a legal assignment, the assignee substitutes the assignor6. The assignment of litigation to a Third Party Funding Association results in an equitable trust. The Third Party Funding Association is thus entitled to a portion of the eventual resettlement sum of $ 35,000. 2. Would your answer to Question 1 be different if the “buyer” of Helen’s litigation was her bank Empire Credit? A professional investor such as a bank acquires complete control in the litigation and is entitled to the entire award from the litigation. Litigation claims are allowed in cases where the third party funding the claim has a legitimate concern in the lawsuit and must demonstrate that they do not have interest in wagering on the result of the litigation neither do they plan to sell the litigation. In assignment of legal claims, the original claim holder is entitled to a considerable portion of the claim to ensure their cooperation in the firm7. Banks on the other hand fund claims where there is a high probability of winning the judgment and where settlement is likely to be successful. If the risk of the third party’s exposure is small, an upfront funding of the claim is made as was the case with Helen. The funder typically receives between 25 and 40 percent of the claim8. Assignment of legal claims was allowed by Australian courts in the case of Campbells Cash and Carry Pty Ltd V. Fostif Pty Ltd9. Third party litigation funding is not controlled by any particular statute but is generally controlled by The Federal Court of Australia Act 1976, The Trade Practices Act of 1975, and other territory and state statutes regulating protection of consumers10. In case of an equitable assignment, the assignor only becomes a party to the suit and is a co-claimant since the assignee retains the legal rights to the claim. The assignor continues to have an interest in the proceedings and is entitled to a portion of the settlement. In the case of an equitable assignment, the assignee is merely conjoined while in the case of a legal assignment, the assignee substitutes the assignor. If the “buyer” of the litigation was Empire Bank, it would have substituted Helen in the litigation since it had advanced her the loan in the first place. It would thus have become entitled to the legal interest in the claim and the entire settlement amount would accrue to the bank. 3. Can Lara ask Sarah to transfer the property in Page to her to hold it on trust for Josh? The three requirements for the validity of a trust are: certainty of intention, certainty of subject matter, and certainty of object11. Certainty of intention means that the intention of the testator or donor to create a trust must be known and clear. Certainty of subject matter means that the property which is the subject matter of the trust must be clearly identifiable; while the certainty of objects means that the beneficiaries must be ascertainable and identifiable. The three certainties were laid down in the case of Knight V Knight12.Trusts can fail because of ambiguity of language, un-identification of a beneficiary, and administrative inconveniences where it is impossible to execute a trust. Lara cannot ask Sarah to transfer the property in Page to her to hold it in trust for Josh because it is realistically impossible. Helen had intended to transfer the house in Page to Lara to hold it in trust for Josh until he finished is tertiary education but had died in 2013 before transferring the house. Josh completed his tertiary education in 2012 when Helen was still alive. It therefore means that there is no certainty of intention because Helen changed her mind about transferring the house. If she still had the intention to transfer the house, she could have included Josh in her will. Moreover Lara could only have held the property in trust until Josh completed his tertiary education. Her interest as a trustee has been overridden by time because Josh has already completed his tertiary education. 4. Advise Sarah in relation to the interest received from the will and the validity of the secrete trust. Helen chose to make a secret will with regard to her ex-nuptial son Stephen. Secret wills are secret trusts that are made out of the public domain. Her ex-nuptial son was probably unknown to her husband. Secret wills are a form of secret trusts and they operate out of statutory provisions. The requirements for creating an express trust must still be met when creating a secret trust13.To prove that a secret trust exists, there must be proof o the intention of the testator that the subject matter of the secret trust will be applied according to the wishes of the testator; the testator must communicate the intentions to the intended trustee; and the trustee must fulfill the testators intention. There are two types of secret trusts: half-secret; and fully secret trusts. In fully secret trusts there is no disclosure in the will about existence of the trust while in half-secret trusts, the existence of the trust is mentioned in the will but the gift to be bestowed and the identity of the testator is not disclosed14. In the will, Sarah had only stated that she had bequeathed a sum of $30,000 to Sarah. The trust was fully-secret as there was no disclosure of the existence of a trust. Helen had communicated her intention to Sarah when she had given her a key to open a safe box for a letter in case she died. Sarah agreed and Helen indicated that she would know what to do after reading the letter and she would be paid for it. Upon opening the safe custody box, Sarah came across a letter advising her to give $20,000 of the $30,000 to Stephen and keep the rest for herself. The secret will is therefore fully valid and Sarah should consider the $10,000 the promised payment by Helen when she made her intentions known to her. 5. Advice William in relation to the gift of $20,000 to Stephen from Helen. Even though a secret will may contravene the provisions of The Wills Act of 1837, equity comes into play to fulfill the intentions of the settlor for the benefit of a party who may be unknown. A secret trust is a confidential agreement between the settlor with the trustee. Equity developed the doctrine of secret trusts to protect the interests of the beneficiary and stop the trustee from commission of fraud. Existence of secret trusts is not evidenced in writing15. If the secret trustee behaves fraudulently, then the secret trust can be revoked and fall within the provisions of The Wills Act. William is a residual beneficiary and therefore the gift to Stephen does not concern him unless Sarah fails give the money to Stephen, in which case William can institute legal proceedings. Question 2 Testamentary dispositions are provisions in a codicil or will that explain how the testator’s estate will be disposed. The law of testamentary disposal is complex and wide ranging. The validity of a gift is affected by the following factors: The type of gift and the formalities regulating those gifts; the capacity and competence of the donee and the donor; and the effects of imperfections in the testamentary disposition16. There are three types of gifts: Testamentary gifts; gifts mortis causa; and gifts intervivios. If a transaction fails, the full effects of the imperfection are put in consideration to determine whether they render the gift void or voidable. The general rule of inter vivos testamentary dispositions is that any person of full capacity and majority age can dispose any estate, property or interest therefore to which he or she is entitled. The disposition must be made voluntarily and the testator must act fairly and freely with adequate knowledge. A power of attorney can be used to execute the gift as long as it is authorized in the deed. The person making the gift must have the mental capacity to do so. In Re Beaney17, it was held that the mental capacity required in making testamentary dispositions is the donor’s capacity to understand the nature and effects of the gift and to show a sufficient level of comprehension of the consequences of such an undertaking18. Where the donor makes several gifts within a relatively short period, courts will consider the conduct. The decision making powers of the testator are also accessed. The legal burden to prove that the testator lacked sufficient mental capacity at common law lies with the person claiming so19. If lack of capacity is sufficiently proved, the burden of proof shifts to the other party. The person making a testamentary disposition must also have the capacity to make a will, the capacity to enter into a contract, the capacity to initiate legal proceedings, and the capacity to make a will. The common law test of testamentary capacity was laid down by judge Cockburn in Banks v. Goodfellow20 . It states that the testator must comprehend the act of disposal and its consequences; the testator shall also comprehend the quantity of property being disposed; the testator shall be capable of appreciating and comprehending he claims that may arise from the dispositions; and that the testator’s capacity is not affected by mental illness21. The validity of the dispositions made by Larissa will be determined by whether the disposition is intervivos or testamentary. Testamentary trusts come into operation when the settlor dies while inter vivos trusts arise when both parties are alive. It will also depend on whether beneficiaries are ascertainable. The objects of a trust must be certain. If the beneficiaries are unascertainable, the trust will be invalid. Enforceability will also depend on whether the trust is inevitable or it is conditional22. Conditional trusts are only executable when the condition materializes while inevitable trusts do not have any conditions attached to them. In Saunders V Vautier23, a testamentary trust as made for the trustee to hold some shares in property for the interest of the beneficiary until the beneficiary turned 25. The beneficiary then sought termination of the trust. It was held that if the beneficiaries were ascertainable the trust could be terminated but if the beneficiaries were not ascertainable the trust could not be terminated24. Trusts are also used for furtherance of charitable causes. Such trusts can only be used for purpose involving people. They can be utilized for favor of any number of people so long as the trusts funds are distributed in a manner that is consistent with the objectives and purposes of the trust25. Charitable trusts are classified in four broad categories; Trusts for advancement of religion; Trusts for advancement of education; Trusts for relief of poverty; and trusts for other activities of benefit to the community construed within the purposes served by The Charitable Uses Act of 160326. Charitable trusts must be of public benefit to be valid. Trusts to benefit a private or distinct group such as family members are invalid. Charitable trusts are an exception to the rule that for a trust to be valid there must be certainty of objects. Charitable trusts for political purposes are also invalid and so are purposive trusts which are non-charitable in nature. It’s only the Attorney General who has the locus standi to institute proceedings relating to charitable trusts because they are public in nature. Trusts for charitable purposes are exempted from death duties, gift duties; taxation of income; and council rates. If a charitable trust fails, the court can apply the money or property for purposes which are similar to intentions of the testator. In Commissioner for Special Purpose of Income Tax V. Pemsel,27 a testator awarded some amounts of money to the Advanced Missionary Church to use in its work in poor nations. The court held that the trust was valid because it was to be used for the advancement of religion. Trusts for political purposes will fail because political activities are not charitable. Trusts agitating for a change or reform of laws are also not charitable.28 A trust for purposes of changing government policy is also void and so are trusts for influencing public issues on current affairs. Trusts for political purposes are unenforceable because charitable trusts can only be enforced by The Attorney General and there would be a conflict of interest if the attorney general was to enforce a trust that contravenes government policies29. In Public Trustee V. Attorney General (New South Wales)30, a testator disposed her estate for the benefit of the Federal council for the Advancement of Aborigines and Torres Strait Islanders. The will included both political and charitable purposes such as introduction of laws recognizing equality and the right of Aborigines to own land. The public trustee argued that the will was invalid because it included political purposes. The court held that the charitable purposes were valid but the political purposes were invalid. It was held that the doctrine of a cy-pres scheme would apply so that the money for political purposes would be applied in charitable purposes that the testator had contemplated. Trusts for anomalous purposes such as care of animals and maintenance of tombs are also not enforceable31. The first disposition of $100,000 to any member of the family who studies art at The University of Melway will fail because it is a purpose trust for private purposes. It is not legally enforceable because for a purpose trust to be enforceable it must be for public benefit. The legal outcome is that the disposition will revert to Larissa’s estate. The testamentary disposition to leave $500,000 to establish a scholarship for talented students form Broad meadows who study art at the University of Melway is a purpose trust for charitable purposes. The disposition is enforceable because it is a trust for public benefit in the advancement of education as specified in the Elizabethan statute. The inclusion of members of the family does not render it void since they are also part of the public. The legal outcome is that the court will hold the disposition valid. The testamentary disposition to leave $500,000 for better understanding of religions in Australia is also valid since it is a chartable purpose trust for public benefit through advancement of religion. The testamentary disposition to use $300,000 for provision of a coffee room for Professor Larissa’s colleagues in the Art Department at The University of Melway is a purpose trust for charitable trusts. The trust is enforceable but can be challenged in court because her colleagues are private persons as opposed to the general public. The legal outcome is that the court will rule that the disposition is valid. This is as was held in Re Denley’s Trust Deed32 , where a testamentary disposition left financial aid for land to be used for sports and recreation grounds for employees and other persons who maybe authorized by the trustees . The defendant sought orders that the trust should be declared invalid because it was for the benefit of unascertainable beneficiaries and was therefore void on basis of the beneficiary principle. The court held that it rust was not void n basis of the beneficiary principle because it would benefit ascertainable individuals and was not abstract or impersonal. It did not violate the rule against perpetuity because it was for a limited time. The uncertainties in the trust could be resolved and therefore the trust was valid33. Similarly the disposition is valid because Larissa’s colleagues are identifiable and it will be used for a coffee room. The testamentary disposition of leaving the residue of the estate to the Society of Radical Artists is a purpose trust. The trust is for charitable purposes to benefit the society but it will fail because of political purposes such as establishment of collectives of politically committed artists and campaigning for the introduction of a government scheme to provide financial support for radical artists. The legal outcome is that the trust will fail for two purposes; it will fail because of the political purposes; and it will also fail because the society had been wound up before Larissa died. The court will therefore invoke the Cy-pres scheme doctrine to apply the residue to apply the charity to purposes similar to those Professor Larissa desired such as education of art students from other places in The University of Melway. Question 3 The grant of $ 7000 to Aurelia by The Education Grants Association for travel in connection with research on Icelandic myths resulted in a trust relationship between Amanda and the Grants Association. The association was the settlor and Amanda was the trustee. It was Amanda’s duty as a trustee to use the money for the purpose specified in the award of the grant. In Twinsectra Limited v. Yardley34, it was held that a trust had arisen in favor of a person from whom money had been borrowed for a specific purpose but was misapplied for other purposes by the party that borrowed the money35. The misapplication gave rise to a resulting trust in favor of the person who had lent the money. The court held that the lender has the legal interest to the money while the borrower had the equitable interest to the property. Wrongful use of the money for other purposes had rendered the borrower liable for breach of fiduciary duty and for breach of trust36. In the case, a solicitor had acted on behalf of a borrower to obtain money from the lender. The money was supposedly for acquisition of property. The money was not used to purchase property and the borrower used it for investments. The court specified that a grant of money to a borrower for a particular purpose where the borrower is not at liberty to apply the money for other purposes creates a fiduciary duty which is a responsibility of the borrower and the court of equity has inherent powers to enforce that duty37. Advancement of the money to the borrower gives the lender enforceable rights if the money is applied for other purposes. Such trusts are known as Quist close trusts in the Australian legal system. They do not merely arise because the money was used for purposes other than the purposes intended; they arise because there is an express or implied agreement that the party which receives the money does not have the freedom to dispose the money for other purposes. The trust created is not express but rather it is a resulting trust. There is no need to prove intention on certainty of object. Any money accruing from such investments is trust money. The trust is executed subject to a power to the grantor or lender to allow the borrower or receiver to use the money for the original purpose. The money in such a situation remains the property of the grantor until it is applied for the intended purpose. Amanda therefore holds her investments in Retint Mines in trust for EGA. EGA holds the legal interest in the shares while Amanda only holds an equitable interest. The shares are therefore held by EGA with the power to distribute the original amount of the grant and the $5,000 that belong to her to Amanda for the original purpose of the grant which was to travel to Iceland. If Amanda is no longer willing to travel, then the entire amount will revert to EGA and she will be only entitled to the shares and interests accrued from her own money. Adam does not owe EGA any obligations since he is a third party who was not dealing directly with EGA. Question 4 Discretionary trusts are created in a manner that the entitlements of the beneficiaries to the trust fund are not fixed but are determined by the settler in the trust instruments38. They are mainly used to settle family matters. They can be in the form of resulting trusts, constructive trusts, or express trusts. While in fixed trusts the proprietary interests of the beneficiaries are specific, in a discretionary trust, the interests of the beneficiaries are dependent on how the trustees exercise their power. Discretionary trusts are for protection of beneficiaries from creditors and for control of the activities of careless or young beneficiaries In Ashton V. Ashton39, it was held that all the listed beneficiaries have an interest. The other beneficiaries cannot interfere with the share of their counterpart beneficiaries. Trustees have the legal interest in property while beneficiaries have the equitable interest40. Beneficiaries do not have any determinate interest in the trust income and their interests are determined by the trustee using discretion. The general duties of trustees include: Duty to act truthfully and honestly in all matters related to the trust; Duty to know the terms and conditions of the trust41 ; Duty to exercise diligence, skill and care when dealing with matters of the trust42; Duty to be impartial and unbiased with regard to the beneficiaries; Duty to maintain and present proper books of account; Duty to invest trust funds properly; Duty to pay income; Duty to acquire and transfer trust property rightfully; Duty not to deal with trust property for personal profit or benefit; duty not to engage in activities which may hinder the function and performance of a trust; and duty to provide beneficiaries with certain information43. In discretionary trusts, the trustees have a duty to accumulate income, distribute income, deal with distribution of income; stream income and capital; and exercise discretional authority and power to determine whether beneficiaries will receive distribution of capital and income; and if so which beneficiary will receive the distribution. Beneficiaries cannot make any claim on the discretionary trust until the trustees exercise discretion. The discretionary trustees must prepare statements of income annually and use discretion to distribute profits to the beneficiaries. Beneficiaries of a discretionary trust are potential beneficiaries. If trustees fail to invest the assets of a trust or engage in activities which bring loss to the trust, then the trustee is personally liable for the loss. The trustees are also liable in case of depreciation of a trust where they have the power to sell but refuse to sell44. Trustees must act in the best interest of the beneficiaries when investing and they have a duty to invest funds in equity45. The trustees have a fiduciary duty not to profit themselves from the trust fund. Where trustees act reasonably and fairly, the court can exempt them from liabilities incurred for the breach of the trust. Discretionary trustees must always consider how appropriate their actions are with regard to the welfare of the beneficiaries’46.If the discretionary trustees exercise their discretion inappropriately, the court has powers to remove them and substitute them with new responsible trustees47. The decisions of trustees can be impugned on grounds of bad faith, unfairness or unreasonableness48. The court has inherent jurisdiction to remove trusts and institute new ones if the trust property is not being used for the interest of the beneficiaries or if the property will not be safe with the current trustees49. By withdrawing money from the trust fund and using it for her own profit by buying an expensive handbag and giving the rest to her son, Cybil acted irresponsibly and in bad faith since she injured the interests of the beneficiaries. She breached her duties as a discretionary trustee. Matilda and Max cannot get any money since Cybil had the power to exercise discretion on how to use money. The only remedy they have is filing an action in the court of equity demanding removal of Cybil as a trustee; and to have a more responsible trustee appointed to replace her so that their interests in the property can be safe and secure. References Bryan, M., & Vann, V. (2012). Equity and Trusts in Australia. Cambridge, Cambridge University Press, pp 61-75. Dal Pont, E., & Mackie, K. (2013). Charitable Trusts. Chatswood, N.S.W., LexisNexis Butterworths, pp 125-135. Dubnick, M. (2009).Testamentary and Discretionary Trusts. Law Review Journal. 28, 376-417. Garrow, J., & Willis, J. (2007). The law of wills and administration and succession on intestacy. Wellington, Butterworth & Co. (Australia) Ltd, pp 56, 70. Hardingham, J., & Baxt, R. (2010). Trusts in Australia. Sydney, Butterworths, pp 192-203. Eisenberg, M. (2008). Discretionary trusts: supplement: draft settlement of discretionary trust. Sydney, Butterworths, pp 321-348. Chapman, M., & Henry, J. (2011). Third Party Litigation. Melbourne, Leo Cussen Institute, pp 178-198. Simpson, A. (2011). Nature of Testamentary Dispositions. Hoboken, John Wiley & Sons, pp 221-229. Smail, M., & Lee, A. (2009). Negotiations and settlements in litigious matters. Sydney, College of Law, pp 42-56. Waye, V. (2012). Trading in legal claims: law, policy and future directions in Australia, UK and US. Presidian Legal Publications, pp 316-324. Read More