Law of Property - The ase of Gold and Gilbert v Hill - Assignment Example

Question a) The bequest of 100,000 pounds in favour of Tom turns on the application of the interpretation of equitable principles in relation to the validity of secret trusts. In short, the validity of this bequest is required to be supported by evidence of a corroborative nature capable of supporting the contention that Vito did in fact grant the funds to Tom to hold the same upon secret trust for Lucy and Santino. A secret trust can be created by the bequest of property via a trust instrument or a will although a donor will by independent means provide specific instructions for the further disposition of the property. The further disposition of that property will operate as a secret trust requiring that the person to whom the bequest is granted to comply with the wishes of the donor provided he agrees to hold the property for the benefit of another or by virtue of his silence he acquiesces.1 There is evidence that Tom acquiesced in Vito’s request because when Vito made the bequest of 100,000 pounds and pointed out that the proceeds were to be disbursed between Lucy and Santino. Tom did not respond. Therefore his silence will be construed as consent to Vito’s wishes. The case of Gold and Gilbert v Hill provides some guidance for the validity of secret trust of 100,000 to Tom to be held upon trust for Santino and Lucy. Gilbert designated Gold as his beneficiary for an insurance policy in the sum of 350,000 by virtue of a non-testamentary disposition. When executing the necessary insurance policy form, Gilbert provided information that defined Gold as the executor of his estate. At a later time Gilbert executed a Will, in which he named his solicitor the executor of his estate with his wife designated as the only beneficiary.2 Thereafter Gilbert became involved in an intimate relationship with Carol following which he informed Gold of the particulars contained in his bequest of 350,000 via the insurance policy. He pointedly advised Gold that ‘if anything happens to me you will have to sort things out. You know what to do - look after Carol and the kids. Dont let that bitch get anything.’3 Following Gilbert’s death Gold and Carol took the matter to court seeking declarative relief on the grounds that Gold held the insurance policy proceeds in the terms of a secret trust for the benefit of Carol. The court held that based on the evidence which consisted of the information contained in Gilbert’s insurance application form together with his communication to Gold, on a balance of probabilities, operated to support the contention that Gilbert intended that Gold hold the proceeds u[on trust for Carol.4 The facts of Gold’s case differ from facts in Tom’s case in one material respect. That difference is to be found in the lack of evidence capable of corroborating Vito’s secret trust instructions to Tom with regards to Lucy and Santino. The will itself does not provide any information indicating that Vito intended any more than an outright gift to Tom. In Gold’s case, there was independent evidence contradicting the contention that Gold was an executor rather than a beneficiary. Moreover Gold himself disclosed ther terms of the secret trust as communicated to him by Gilbert.5 In the circumstances and based on the ratio deciendi contained in the ruling delivered by the court in Gold and Gilbert v Hill, unless he reveals the nature and content of his conversation with Gilbert, it seems there is nothing barring Tom’s retention of the 100,000 pounds. Whether or not the secret trust is valid will also depend on evidence of the donor’s intention. The relevant test is to be founded on an interpretation of the facts and whether on the facts the donor of the secret trust intended to create either moral or legal obligations on the part of the secret trustee.6 In Re Cleaver Norse J explained that ‘I would emphasise that the agreement or understanding must be such as to impose on the donee a legally binding obligation to deal with the property in the particular way and that the two other certainties, namely those as to the subject matter of the trust and the persons intended to benefit under it, are as essential to this species of trust as they are to any other…..As in this case the principle difficulty is always whether there was a legally binding obligation or merely what Lord Loughborough LC in Lord Walpole v Lord Orford (1797) 3 Ves 402,419, described as an honourable obligation.’7 The declaration of trust made by Vito to Tom complies with the requisite certainties for the valid creation of trusts instruction. The trust property of 100,000 pounds operates sufficiently to satisfy the common law requirements for certainty of subject matter. Certainty of objects is also unambiguously disposed of as Lucy and Santino are designated as the class of beneficiaries. Vito’s intention to create a valid declaration of trust is also unambiguous. As previously noted, since Tom alone has knowledge of Vito’s secret instructions it is conceivable that there is no legal obligation on Tom’s part to comply with Vito’s request. Question b) Although there are some difficulties with the provisions contained in Clause (b) of Vito’s will it is not necessarily an invalid disposition under a trust. The ruling in McPhail v Doulton is helpful here in determining the validity of the first part clause (b) which relates to the disposition of the shares in Transit Ltd in favour of Fredo and Vito’s brother as trustees for the benefit a rather broad class of beneficiaries. Keeping in mind the requisite certainties referred to earlier, Vito’s intention be are evidenced by the words used in his will. Vito’s intention to vest in his trustees wide discretionary powers in their exercise of the power of distribution of the shares in Transit Ltd is rather obvious. Of the three certainties, intention is said to be the most significant and important one.8 There is no real doubt as to Vito’s intention as to this aspect of the creation of the trust. Vito also identified his trustees and bequeathed property to them instructing his trustees to hold the property for a specific purpose for the benefit of others. There is no difficulty here in the construction of Vito’s intentions to create a trust. Equally as certain is the subject matter or trust property to be held in trusts. Certainty of objects however, appear to fall short of the requisite certainty principles. While the class of beneficiaries comply with the common law ‘in or out’ test as enunciated by the House of Lords in McPhail v Doulton in respect of the actual shares, the class of beneficiaries in respect of the income from the shares is too vague and will fail for uncertainty.9 In McPhail v Doulton, employees, ex-employees, relatives of employees and officers, officers and ex-officers were held to be sufficient certainty of objects. Lord Wilberforce, explained that there was a simple test for ascertaining whether or not trust will fail for lack of certainty. This test was a basic ‘in or out’ test. All that the court was called upon to do was determine whether or not a particular beneficiary was capable of fitting within the class of designated beneficiaries. This test required that the court, if called upon to do so, could effectively distribute the trust property among the designated beneficiaries.10 Based on the decision of the House of Lords in McPhail v Doulton, the trust settlement can and will be held valid on the grounds that the certainty of objects are sufficient for administrative distribution. Moreover, in a later case, a trust granting trustees the absolute discretion to add beneficiaries was held to be valid. 11 In another case the court validated a trust in which there were no designated trustees and the donor instructions effectively left the trustees with a wide discretionary power to designate the beneficiaries that trust was held to be valid. The ratio deciendi of the ruling implies that the liberal interpretation of certainty of objects is validated by treating discretionary powers and discretionary trust in an identical manner.12 It is therefore not necessary for Vito to have provided a complete list of the beneficiaries. The second part of clause (b) however, will present some difficulties with regard to the validity of that provision. According to the ruling in McPhail v Doulton, the provision for distribution to a class such as the residents of the West Midlands is exactly the type of vagueness Lord Wilberforce warned against. He specifically stated that a bequest to all of the residents of the city of London would fail because it would be impossible to distribute a discretionary income from trust property among such a vague class of beneficiaries. 13 Question c) Aston Villa Football Club Supporters’ Association as a non-charitable unincorporated association is not a legal entity. That being the case, the manner in which it can hold property is limited. In Consecutive and Unionist Central Office v Burrell Lord Lawton LJ explained that an unincorporated association exists by ‘agreement between two or more people who are bound together for one or more common purposes not being business purposes, by mutual undertakings each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and on what terms and which can be joined or left at will’.14 The gift of 2000 pounds to Aston Villa Football Club Supporters’ Association is a valid gift which can be held for the benefit of the group. Funds can be held by the Association in much the same manner as dues and membership fees. Walton J noted that ‘if a number of persons associate together, for whatever purpose, if that purpose is one which involves the acquisition of cash or property of any magnitude, then, for practical purposes, some one or more persons have to act in the capacity of treasurers or holders of the property. In any sophisticated association there will accordingly be one or more trustees in whom the property which is acquired by the association will be vested. These trustees will of course not hold such property on their own behalf.’15 However the acquisition a bus is not capable of validity since it requires registration in the name of a legal entity. In the event of dissolution of the unincorporated associations the distribution of the funds and assets are not subject to equitable doctrines and will be distributed according to the laws governing contracts.16 Therefore the validity of the 2000 pound gift will be construed with reference to contract laws together with the by by-laws of Aston Villa Football Club Supporters Association. Question d) According to the ruling contained in Grey v Inland Revenue Commissioner the shares in Lucrative plc is movable property, it is subject to the provisions of Section 53 (1)(c) of the Law of Property Act 1925. By virtue of this ruling, the transfer of shares in a company is subject to ad valorem stamp duty the requirements contained in Section 53 (1) (c) will apply.17 Section 53(1)(c) provides that a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorised in writing or by will.’18 Nonetheless it can be argued that the bequest of the 5000 shares in Lucrative Plc does in fact comply with the provisions and requirements set forth in the Law of Property Act 1925 Section 53(1)(c). The written evidence of the transfer is contained in the birthday card the Vito gave Connie on the celebration of her 18th birthday. The fact that Vito failed to actually execute the actual share transfer in favor of Connie will not invalidate the gift of the shares to her. The maxim ‘equity regards as done that which ought to be done’ dates back to 1802 and will operate to perfect the share transfer to Connie. Lord Eldon said ‘I take the distinction to be, that if you want the assistance of the court to constitute a cestui que trust, that the instrument is voluntary, you shall not have that assistance, for the purpose of constituting a cestui que trust, as upon a covenant to transfer stock, it rests in covenant, and is purely voluntary, this court will not execute that voluntary covenant, but if the party has completely transferred stock, though it is voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced by this court.’19 Lord Gill maintained that if valuable consideration is given for the trust, whether or not the trust is completely or incompletely constituted is of no real consequences since ‘Equity regards as done that which ought to be done and will perfect an imperfect conveyance for value by treating it as a contract to convey.’20 A gift out of love and affection to a close relative, as in marriage and children of the marriage is looked upon as valuable consideration under the general principles of equity.21 By virtue of the above principles of equity, the transfer of 5000 shares to Connie will be perfected by the courts and will not fall to the residuary estate in favor of Kay. The remaining shares in Lucrative Plc do not appear to have been specifically dispensed with by Vito in his will although he did make provision for his residual estate to devolve to his wife Kay. The residual estate is all properties remaining after administration of the trusts or bequests created by a will.22 The penthouse is immovable property and will devolve in accordance with the provisions contained in the Law of Property Act 1925 as amended. Section 52 of the Act makes it mandatory for the disposition of immovable property to be disposed by deed only.23 Vito failed to provide written evidence of the creation of a trust in the Penthouse to Michael who could not hold a legal estate in realty since he was a minor at the time of his oral declaration of trust.24 As a result the penthouse will devolve with the residue of Vito’s estate and as such Kay will acquire the title to the property. Had Vito make a written declaration of his intention to create a trust in the Penthouse in favor of Michael the Penthouse would not form a part of Vito’s residuary estate, rather a resulting trust would have been created by operation of equitable principles. The House of Lords maintained that all resulting trusts were founded on the presumed intentions of the parties.25 Vito’s intentions may be difficult to ascertain and prove to the satisfaction of the court since they were only communicated to Michael. Michael appears on the facts of the case for discussion to have his own interests to serve. In any event, it is settled law that when there is no written evidence a claim to an absolute title to immoveable property will fail. Bibliography Conservative and Unionist Central Office v Burrell [1982] 1 WLR 522 Ellison v Ellison [1802] Ves 656 Gold and Gilbert v Hill, The Times on 24th August, 1998. Girocentrale v Islington Burrough Council (1996) AC 669 Hayton D, Hayton and Marshalls Commentary and Cases on the Law of Trusts and Equitable Remedies (2005) Sweet & Maxwell London Law of Property Act 1925 Section 53(1)(c) Lee Eng Teh v Teh Thiang Seong [1967] 1 MLJ 42 Martin, J E Hansbury. Modern Equity. (2005) Sweet and Maxwell. London McPahail v Doulton [1971] AC 424 Re Gestetner Settlement [1953] Ch 672). Re Bucks Constabulary Fund (No.2) [1979] 1 WLR 936 Tana & Anor v Tana & Anor [2001] Ch 413 Watt, Todd. Watt’s Cases & Material on Equity & Trusts. 2005 Oxford University Press. Oxford. Read More