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Trusts, :arrow_up: - Coggle Diagram

- - - - Under: trust deed, Trusts Act, General trust law
- - - - Fixed: Imperative, mandatory obligation to carry it out according to it's terms
        
        Specify Quantum: need to specify the trust property & how much goes to beneficiary
      - Discretionary: Discretion to who and what amount, an equitable chose in action
        
        Nature of Interest of Beneficiary
        
        Right to be considered
        
        A right to proper administration of trust
        
        A right to see that the trust is properly administered
        
        Right to seek review- S8 TA
        
        Duties of Trustees
        
        Must act bona fide
        
        Not required to disclose reasons, unless trust deed or statute requires
    - - Bare trust: duties limited to conveying property to beneficiary where duties are limited to investing and managing the property
      - Special trust: duties are more complex and include personal duties.
- - - - General powers: Power to appoint anyone
      - Special powers: Power to appoint specified persons/ a specified class
        
        Mere power: A discretion whether or not you actually give it to anyone
        
        Gift over in default of appointment
        
        Obligation of trustees/donees
        
        No duty to exercise the power (appoint)
        
        Must appoint within the class designated
        
        If power not exercised: property will pass pursuant to any gift over
        
        Rights of Objects
        
        Generally no proprietary interest in or right to the property
        
        Only have a right to apply to apply to court to ensure exercised properly
        
        Trust power: Mandatory component
        
        If there is a duty to appoint
        
        Imperative or mandatory language
        
        Obligation of trustees/donees
        
        Duty to appoint or exercise the power
        
        If power is not exercised, then it is a breach of trust
        
        Rights of Objects
      - Hybrid powers: Power to appoint to a class defined by exclusion
- - - - Intention can be express or inferred
      - Equity looks to intent not form
      - Conduct will be sufficient
      - Precatory Words: 'I wish' or 'I desire' will not satisfy intention
      - Byrnes v Kendle: Main authority
    - - Must be clear what property that trust is supposed to operate on
      - Objective Criteria: where uncertainty in language are capable of being interpreted with certainty, than the trust can be saved
      - Fixed Trusts: Specify Quantum: need to specify the trust property & how much goes to beneficiary
      - Property Must be capable of being held on trust
        
        Future vs Present property: the tree and the fruit
    - - Beneficiary principle: Express trusts are required to be for the benefit of identifiable persons
        
        Charitable purposes: Relief of poverty, advancement of education, advancement of religion, purposes benefical to the community
        
        Anomalous purpose
        
        Trusts for persons
      - Trusts for Persons (private trusts): Fixed and discretionary
        
        Fixed private trusts require list certainty
        
        Discretionary private trusts require criterion certainty (the 'in-out' test)
        
        Criterion certainty can potentially give rise to two types of 'uncertainty'
        
        Conceptual: relates to linguistic or semantic certainty in relation to the words used to define the class of objects (Invalid Trusts)
        
        Evidential: relates to whether there is sufficient evidence to determine whether or not particular persons are within a class (Will not Invalidate Trusts)
      - Trusts for Purposes (public trusts): Public charitable trusts, anomalous purpose trusts
  - - - Direct Transfer to Trustee for third party
        
        Settlor has both legal and equitable rights and has transferred legal title to the trustee who holds equitable rights on trust for the beneficiary
      - Declaration as trustee for third party
        
        Settlor declares themself as trustee
      - Contract for Valuable Consideration
    - - Requirements of Writing: PLA s11
        
        PLA s11(1)(a): no interests in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent, lawfully authorised in writing, will or operation of law
        
        Land
        
        Legal and Equitable Interest
        
        Creation and disposition of land
        
        PLA s3, sch 6 'disposition'
        
        Includes direct transfer of land to trustee
        
        Active subtrust
        
        PLA s11(1)(b): a declaration of trust respecting any land must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.
        
        Only relates to land
        
        Declarations of trust
        
        PLA s11(1)(c): a disposition of an equitable interest or trust subsisting at the time of the disposition, must be manifested and proven by some writing signed by the person disposing of the same, or by his agent lawfully in writing or by will.
        
        Land and personalty
        
        Disposition
        
        Subsisting (not creation) equitable interest
        
        Passive Subtrust
        
        Exceptions to Writing Requirements
        
        Fraud
        
        Resulting, Implied and constructive Trusts
        
        Part performance and unconscionable conduct
      - Requirements of Form: Only for Trusts that are by Transfer
        
        Is property capable of assignment?
        
        Saturoy restrictions: can't assign rights to property in divorce proceedings
        
        General law restrictions: Public pay; bare rights to litigate, assignment invalid on public policy grounds
        
        Right to litigate assignable if: Genuine and substantial (commercial interest)
        
        Verdict assignable: Judgement once delivered is present property (legal chose in action)
        
        Most property including equitable rights and chose in action are capable for assignments
        
        Is there intention to assign?
        
        Clearly manifested intention to divest assignor of property and vest in assignee
        
        Distinguish revocable mandate (authority): If settlor has opportunity to change his mind
        
        Assignment at law: transferor must use the appropriate form of transfer based on the nature of the property involved.
        
        Torrens title land
        
        Must transfer by instrument of transfer and it's delivery to the intended trustee
        
        Is effective on the registration of the transfer.
        
        Includes signing the transfer, getting the transfer stamped, paying the stamp duties and lodging the transfer in the titles office for registration
        
        Choses in possession
        
        Refers to tangible goods such as paintings, books
        
        Can be transferred either by gift or sale
        
        To transfer by gift, needs to be delivered to the beneficiary with an intention to give or sign a deed of gift
        
        Not governed by specific legislation: can be included in s19 SGA
        
        Legal Chose in Action
        
        Intangible items such as money in a bank account or a debt
        
        Assignment of choses in action: PLA s199
        
        Requires
        
        Intention to assign
        
        Property sufficiently described
        
        Assignment absolute
        
        Assignment in writing, signed by assignor
        
        Written notice to debtor, trustee
        
        PLAs199 does not apply to equitable choses in action
        
        If there is more than one assignment of a debt made by the assignor, the rules of priority apply
        
        Dearle v Hall
        
        2 more items...
        
        Assignment in equity
        
        Equitable property can be assigned at law unless the legal property:
        
        Property not capable of assignment at law
        
        Failed attempt to assign legal property at law eg real estate not registered
        
        Future property is equitable and can only be assigned at equity
        
        If consideration has passed, then it automatically gets recognised in equity and is enforceable as it will say the assignor holds it as a constructive trustee
        
        Look for consideration in assignment problems