Trusts?

Saunders v Vautier rights requirements

• beneficiary must be 18 or over

• sui juris

• in absolute possession of the trust assets.

• If there are other beneficiaries, all must consent and satisfy the same conditions.

What is the rule for accounts where trustees mix different trust money in their account?

When the trustee takes trust money in breach of trust and puts into their own account which has money already in it.

“first in first out” rule that applies to current accounts: whichever money has been put in their first is withdrawn first.

What are the main remedies for breach of fiduciary duty?

Account of profits and a proprietary remedy as a constructive trust beneficiary.

What is the test for certainty of objects?

The trustee must be able to say whether a potential beneficiary is or isn’t in a class of beneficiaries.

What are the requirements for the power of investment?

1. investments must be made in accordance with the standard investment criteria

2. must be monitored

3. before making an investment decision proper advice must be obtained and considered.

Can the power of investment be delegated?

The trustee can delegate their powers of investment, but:

• must be to someone suitable

• the agreement must be in writing

• the trustee must supply the agent with a portfolio statement to follow.

what are the formalities for a trust in land?

In writing and signed by settlor

What is a donatio mortis causa?

• The gift must be made in contemplation of impending death.

• The gift itself (the means of control of the gift or some essential indication of title) is delivered to the donee.

• Intention to make gift conditional on death.

What is proprietary estoppel?

• promise by A to B in relation to rights in land;

• A intends B to rely on that promise;

• B suffers a detriment based on that reliance; and

• it would be unconscionable for A to depart from that promise.

What is required to be a charitable trust?

• be for a charitable purpose (as listed under the Act);

• for the public benefit (benefit a sufficiently large number of people); and

• be exclusively charitable (no additional profitable or personal gain involved).

Can a trust deed limit or exclude liability?

Yes for all liability for any breach including any breach of the statutory duties of care but cannot exclude liability for the fiduciary no profit, no conflict rule and dishonesty.

Can a life tenant and a remainderman collapse a trust under saunders v vautier rights?

provided both are 18 or over, sui juris and in absolute possession (there is no gift over interest), then a life tenant and a remainderman can agree to collapse a trust and take full ownership of the property.

What is a purchase money resulting trust?

• It applies when X gives money to the seller but asks the seller to transfer the property to Y (so X doesn't buy for themselves); or

• X contributes money to purchase the property but it is in Y’s name (resulting trust will reflect X’s contribution).

  In both these situations there is a presumption that X did not intend to make a gift of the property.