Professional Documents
Culture Documents
James Penner
William Swadling
2007
LLB 2660002
DiplomainLaw 2660002
BScAccountingwithLaw/LawwithAccounting 2770202
BScManagementwithLaw/LawwithManagement 2770202
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This edition of the subject guide was prepared for the University of London External
Programme by:
William Swadling, MA (Oxon), LLM (London), Fellow and Tutor in Law, Brasenose College,
and University Lecturer in Law, University of Oxford. Sometime Senior Lecturer in Laws,
University College London.
and
James Penner, BSc (UWO), LLB (Toronto), DPhil (Oxon), Professor of Law, Kings College,
London.
This is one of a series of subject guides published by the University. We regret that owing
to pressure of work the authors are unable to enter into any correspondence relating to, or
arising from, the guide.
If you have any comments on this subject guide, favourable or unfavourable, please use the
form at the back of this guide.
Publications Offce
The External Programme
University of London
Stewart House
32 Russell Square
London WC1B 5DN
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www.londonexternal.ac.uk
Published by the University of London Press
University of London 2007
Printed by Central Printing Service, University of London.
Design and layout by Omnis Partners, Glasgow
All rights reserved. No part of this work may be reproduced in any form, or by any means,
without permission in writing from the publisher.
L~w or :rus:s r~cr _
Contents
1 Introduction 5
2 Truststhebasics 15
3 Typesoftrust 25
4 Theexpresstrustrelationship 43
5 CreatingexpresstrustsI:thedeclarationoftrust 63
6 CreatingexpresstrustsII:constitution 79
7 Provingdeclarationsoftrustandeffectingdispositionsofa
benefciarysinterestunderatrust 87
8 Secrettrusts 99
9 Promisestocreatetrusts 111
10 PurposetrustsI:publicpurposes 121
11 PurposetrustsII:privatepurposes 139
12 Resultingtrusts 151
13 Rightsheldbyunincorporatedassociations 161
14 Appointment,retirement,andremovaloftrustees 171
15 Variationoftrusts 185
16 Breachoftrust 195
17 Breachoffduciaryduty 213
18 ConstructivetrustsI 227
19 ConstructivetrustsII 237
Feedbacktoactivities 251
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1 Introduction
Contents
Introduction 6
11 Trusts:adiffcultsubject? 7
12 Preliminaryandessentialreading 9
13 Learningoutcomes,self-assessmentquestionsandactivities 11
14 Adviceontheexamination 12
15 UseyourSkills portfolio/learningjournal 13
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Introduction
The purpose of this subject guide is to help you study the law of trusts. Working through
this guide, you will gain an understanding of the subject suffcient to do well on the fnal
examination. This is not, however, a matter of rote learning. Each chapter will introduce
and take you through a programme of study, but it will not simply give you the answers
to be memorised for later regurgitation on the exam. Only by taking seriously the various
instructions as to reading and answering questions will you attain the necessary grasp of
the subject.
Learning outcomes
By the end of this chapter you should be able to:
appreciate why the law of trusts is considered to be a diffcult subject
identify the necessary sources of reading for studying this subject.
Spoken law
The ability to express yourself on legal topics in English is a vital part of this
course. It is an essential element of your Skills portfolio.
How do you become skilled at speaking in English? By doing it and practising.
There are four main elements to speaking successfully:
words
structure
arguments
delivery.
Words
Make full use of your English legal vocabulary. Remember that the words need
to ft into meaningful sentences. You can fnd most of the words you will need
in this chapter.
However, you must not simply repeat sections of the chapter. The aim is to
express yourself in your own words.
Structure
It will help you to formulate your arguments, and help your audience to under-
stand them, if you use a BME structure (beginning, middle and end).
At the Beginning, explain what you are going to be talking about, and the main
points in your argument
In the Middle, present the main elements of your argument
At the End, describe your conclusions, and briefy summarise the reasons you
have given in your arguments.
The middle is always the major part of your presentation.
Arguments
You could begin by explaining how and when fxed and discretionary trusts
developed.
Then you need to:
summarise the key characteristics of each type of trust
give examples of where and why they have been used
outline what might be the advantages (and disadvantages) of the two types.
Delivery
The success of a spoken presentation depends greatly on the way in which you
deliver it.
Do not speak too quickly
Check your pronunciation and fuency with phrases
Speak clearly and project your voice so that everyone present will be able to
hear and understand you
Rehearse your presentation until you are comfortable with it.
If you speak to an audience, remember to get feedback on your performance.
of an effective trust.
The benefciaries are able to hold the trustees to account to require that they carry out the
trust properly according to its terms, and, of course, bring any suit against the trustees for
breach of trust or third parties who receive trust rights dissipated in breach of trust or who
dishonestly assist in a breach of the trust.
4.6.2 Benefciaries right to be informed of their interests under the trust
According to Hawkesley v May [1956] 1 QB 304 benefciaries whose interests are vested
rather than contingent on the happening of a certain event have a right to be informed
of the fact that they have a right under the trust, and it is within the courts discretion in
an appropriate case (namely, where it is reasonable to assume that such benefciary had
a genuine likelihood or expectation that a dispositive discretion might be exercised in his
favour) to require settlors to provide the names and addresses of trustees even to a discre-
tionary benefciary: Murphy v Murphy (1998).
4.6.3 Benefciaries right to information
In order to monitor the trustees conduct of the trust and hold them to account if they
breach the trust, the benefciaries must be able to obtain information about the running of
the trust from the trustees. It is now generally accepted that genuine benefciaries, wheth-
er of a fxed or discretionary trust (Chaine-Nickson v Bank of Ireland [1976] 1R 393; Spellson v
George [1987] 11 NSWLR 300, and perhaps even of a contingent interest, (Armitage v Nurse
[1998] Ch 241 per Millett LJ), i.e. objects of a trustees dispositive duty to distribute income
or capital, are entitled to copies (made at their own expense) of the trust accounts and
all trust documents and such rights cannot be limited by contrary provisions in the trust
instrument on pain of rendering the trusts in their favour invalid (on Armitage principles,
above). On the other hand, it has been asserted that objects of powers of appointment, i.e.
powers the powerholder is under no duty to exercise, whether fduciary or personal, are
not entitled to see the trust documents. The Privy Council (Schmidt v Rosewood Trust [2003]
2 AC 709) has held that the objects rights to information refects equitys insistence that
the trust is properly administered, and so whether discretionary benefciaries or objects of
powers have rights to information will turn on the circumstances of the case, in particular
on the likelihood of enforcement by other categories of benefciary or object under the
If you ticked need to revise frst, which sections of the chapter are you going to revise?
Must
revise
Revision
done
4.1 Introduction to rights and duties
4.2 Powers and duties of trustees and others
4.3 Typical administrative powers and duties
4.4 The duty of investment
4.5 Power of delegation
4.6 Interests of benefciaries and objects of
powers