Equity Revision - Express Private Trusts PDF

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Equity Revision - Express Private Trusts...

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Equity Revision - Express Private Trusts Revision support Summary of the topic ● Express trusts are a type of trust that arise on the basis of the settlor/testator’s express intention ●

Our focus in the assessment is on the three certainties

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This will be a problem question, and you will be asked to advise the trustees/executors as to the validity of three different dispositions in a will

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Remember – you will not be examined on the perpetuity rules, issues of capacity, formalities or the beneficiary principle – any discussion of these issues in an answer to an express trusts question will be considered irrelevant

The three certainties: ●

Certainty of intention: ○ Whether there is an intention to create a trust or an intention to create legal relations ○ Trusts are mandatory and must be performed ○ Carefully study the words used in the disposition to see whether the disposition creates an obligation to act vs option to act ○ Look out for precatory words: is there an obligation to act? ○ Remember to note what happens to the property if there is uncertainty of intention

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Certainty of subject-matter: ○ There are 2 elements ○ We need certainty in relation to the trust property itself (note that if the property under consideration is money, you can assume it’s in a bank account and is certain) ○ And we also need certainty as to beneficial share → need to note what each beneficiaires needs to get ○ Remember to note what happens to the property if there’s uncertainty of subject-matter → differs according to whether the issue is to do with the property itself or beneficial shares

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Certainty of objects: ○ This is in relation to who is meant to benefit under the trust or power

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Where the issue is objects it is vital you are able to correctly identify the disposition ■ We must know what we are dealing with to apply the correct test for certainty Remember to note what the authority is for the test and outline how the test works, then apply the test to the facts, focusing on the contentious issues (the application should be the main focus) Check whether it’s possible to resolve any uncertainty. No hypothetical discussion – if there’s no third party, don’t talk about third parties Remember to conclude and explain what happens to the property if there is uncertainty

Assessment tips ● Logical structure is really important – see the marking criteria ●

Where the issue is intention or subject-matter, follow the ILAC structure

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Where the issue is objects, make sure to follow these steps: 1. Identify the disposition 2. What’s the test (+ authority)? Which uncertainties are relevant for that test? 3. Which uncertainties are present on the facts? (That is, apply the test to the facts) 4. Can we cure the uncertainty? 5. Conclusion: valid or void? If void, who gets the property?

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To make sure you can apply the law and analyse the key cases in sufficient detail, do not waste words: ○ You do not need an introduction for this question ○ Do not mention non-assessable issues (e.g. formalities, capacity etc.) or include other irrelevant discussion (e.g. if the issue is objects, only discuss objects) ○ Avoid unnecessary discussion (e.g. a paragraph explaining how you have identified the disposition may be a waste of words – just note what we’re dealing with and move on to the test) ○ You do not need to write the same amount for each part of the question ○ You do not need an overall conclusion – a short concluding sentence for each part of the question is enough

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There is no requirement for you to use academic commentary in an express private trusts question, though you may do so provided the discussion is relevant Some further reading ideas have been noted on the SGS feedback document

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Remember to reference your answers – footnotes in the OSCOLA style (footnotes are to be used for citations only)

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Remember to use pinpoints in your references when referring to case law as well as academic commentary...