Pearce & Stevens' Trusts and Equitable Obligations
This chapter considers how clubs and societies can hold and manage property. Since some forms of ... more This chapter considers how clubs and societies can hold and manage property. Since some forms of club do not have a legal personality as such, there are real issues about how they can deal with property and whether this concerns everyday management, the receipt of gifts, or who is entitled to the club’s property if the club is dissolved. Trusts play a role in providing an explanation. The legal analysis of clubs also affects what happens should a club or society cease to exist. Clubs and societies can take a number of different legal forms: proprietary clubs, incorporated clubs and societies, members’ club, and societies that are not unincorporated associations.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter turns to constructive trusts, the second main category in informal trusts. At its si... more This chapter turns to constructive trusts, the second main category in informal trusts. At its simplest, the term ‘constructive trust’ describes the circumstances in which property is subjected to a trust by operation of law. Unlike an expressly declared trust, a constructive trust does not come into being solely in consequence of the express intention of a settlor. Unlike automatic resulting trusts, it does not fill gaps in beneficial ownership. Like presumed resulting trusts, intention can form an important element in its genesis. As such, a constructive trust is a trust which the law imposes on the trustee by reason of their unconscionable conduct.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter examines the nature of liability for breach of trust. Trusts impose obligations on t... more This chapter examines the nature of liability for breach of trust. Trusts impose obligations on the trustees, and the trustees can be held liable for breach of trust if their failure to meet the obligations imposed upon them causes a loss. The liability of a trustee for a breach of trust is a personal liability, and any remedy is available only against the trustee as an individual, and not against any specific assets. If the trustee in breach has died, their personal liability continues against their estate. There may be separate remedies in relation to any assets retained by the trustee or in the hands of a third party, and different remedies are also available for breach of fiduciary duty.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter looks at situations where the creation of a valid trust requires special formalities... more This chapter looks at situations where the creation of a valid trust requires special formalities. Firstly, it considers inter vivos declarations of trust, such as trusts of land and personal property, as well as sub-trusts. The chapter then discusses dispositions of subsisting equitable interests. Unlike the declaration of sub-trusts, a different formality requirement applies to dispositions of existing equitable interests, which emphasizes that it must be made in writing. There are, however, some exceptions to this rule, particularly in the context of taxation. In addition, this chapter turns to resulting and constructive trusts and declarations of trusts by will.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter considers the process of tracing. Tracing describes the process by which the law all... more This chapter considers the process of tracing. Tracing describes the process by which the law allows the original owner of property to identify and claim as his or her assets in the hands of a third party. Since tracing and following are proprietary concepts, they can only be used if there was initially, and there remains (in its original or any substituted form), an asset or a property to which claim can be made. Tracing is resorted to most frequently when the trustee is insolvent, so that a personal claim is of limited value. It is easy to forget that in most, if not all, cases of tracing or following, the trustee will have acted in breach of trust and will personally be liable.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter starts by outlining some of the changes in society that have driven the development ... more This chapter starts by outlining some of the changes in society that have driven the development of the law on disputes regarding the family home. When a family is living happily together, there are unlikely to be disputes about the ownership of the family home. However, where the relationship fails, or one of the parties dies, the division of assets—including the family home—can be a deeply divisive issue. Where a couple are married, their dispute can often be resolved through the divorce legislation. Even then, the chapter shows how equity may have a part to play.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter describes some policy limits in the law of equity. The rule against perpetuities pre... more This chapter describes some policy limits in the law of equity. The rule against perpetuities prevents owners tying their property up outside of the market for too long a period, otherwise known as the ‘perpetuity period’. The rules of perpetuity also account for accumulations and inalienability. Meanwhile, conditional and determinable interests, where the conditions are designed to influence the beneficiaries’ behaviour in a way that is contrary to public policy, are also restricted. Legislation also provides that trusts may be set aside if they are established with the object of defrauding the creditors of the settlor.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter looks in detail at the fixed trust. In a fixed trust, the interests of the beneficia... more This chapter looks in detail at the fixed trust. In a fixed trust, the interests of the beneficiaries have already been defined by the settlor. The trustee must carry out those terms and distribute the fund as has been specified. There are six uses of fixed trusts: bare trusts, nominee trusts, custodian trusts, non-trustee custodians, concurrent interests, and consecutive interests. The chapter also discusses the beneficial entitlement to defined interests, as well as the certainty of objects. It then shows how a fixed trust will continue for so long as the trustees hold the trust assets for the beneficiaries. Furthermore, it is possible for the principal or beneficiary under a bare or fixed trust to deal with his equitable interest without terminating the trust.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter is concerned with the arrangements which people can make to choose who will benefit ... more This chapter is concerned with the arrangements which people can make to choose who will benefit from their property after their death. It has been said that only two things are certain in life: death and taxes. The two are linked in another way, because death is an occasion on which the state levies taxes, primarily through inheritance tax. The tax treatment of inheritance arrangements is important and has considerable influence on the way in which people arrange their affairs. Moreover, the Law Commission has consulted on some wide ranging changes to the rules governing wills, on the basis that law needs to be updated to improve clarity, bring it up to date, and make it workable. Hence this chapter makes references to their proposals for reform.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter focuses on proprietary estoppel. Proprietary estoppel can confer proprietary rights ... more This chapter focuses on proprietary estoppel. Proprietary estoppel can confer proprietary rights despite the lack of a formal grant or transfer. It can be used in three situations: where a person mistakenly believes that they have an existing right in land and the real owner acquiesces in this belief, where a person is encouraged by the owner to believe that they have an existing right in land, and where a person is led by the owner to believe that they will have a right in the future if they act in a particular way. It has much in common with common intention constructive trusts, but is capable of operating in different circumstances. Most cases involve rights in land, but the doctrine is not confined to this kind of property.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter explores trustees’ management powers. The management powers of trustees are concerne... more This chapter explores trustees’ management powers. The management powers of trustees are concerned with looking after property or funds. They do not allow the trustees to choose who benefits. In addition, the powers of management conferred upon a trustee are not the same in every case. Quite obviously, the powers of express trustees are likely to differ significantly from those of constructive trustees upon whom a trust has been imposed because of their improper conduct. In the latter case, the question of the trustees’ powers rarely arises. They are wrongdoers, who are, by definition, acting in breach of duty. How far they are authorized to act is, therefore, unlikely to be an issue.
Pearce & Stevens' Trusts and Equitable Obligations, 2018
This chapter considers the variation of beneficial interests. One route is for a trust to include... more This chapter considers the variation of beneficial interests. One route is for a trust to include provisions which allow the terms of the trust to be varied by the settlor, or by the trustees, or by a protector, in each case, with or without a requirement of consent by someone else. Variation by the beneficiaries is also explored, as is the surrender of a beneficial interest, the release of a power, the statutory powers of variation, and inherent court powers. The chapter next turns to consensual variation and variation under the inherent jurisdiction of the court. Miscellaneous statutory powers are also discussed. Finally, the chapter gives an overview of the Variation of Trusts Act 1958.
Pearce & Stevens' Trusts and Equitable Obligations, 2018
This chapter explores the powers and duties of trustees in relation to investment. It is in the c... more This chapter explores the powers and duties of trustees in relation to investment. It is in the context of investment that the concept of the trust fund is at its most apparent. The beneficiaries are entitled to share in the wealth which the trust assets represent. The component parts of that wealth are very much less important to the beneficiaries than its aggregate value. Thus, the issues which have to be addressed in the context of investment are first, when trustees are permitted to dispose of existing trust assets in order to substitute new assets; second, what assets may be substituted for the original ones; and third, the principles upon which those investments must be chosen. Over these issues, the chapter addresses a fundamental question on what the purpose of investment is.
Pearce & Stevens' Trusts and Equitable Obligations, 2018
This chapter discusses the trustees’ powers of maintenance and advancement. The powers of trustee... more This chapter discusses the trustees’ powers of maintenance and advancement. The powers of trustees can be divided into two categories: management powers and distributive powers. Management powers are those which relate to looking after the trust property, for instance, investing a fund or insuring a property. Distributive powers are those which relate to deciding who benefits. Generally the decision as to benefit will have been made by the settlor, by creating a fixed trust, by giving the decision to trustees through a discretionary trust, or by conferring a power of appointment on the trustees or a third party. In addition to this, however, there are some instances where trustees can make a decision as to who benefits from a trust fund, even where not expressly provided for by the settlor.
The aims of this project were to provide a better perception of charity involvement in housing th... more The aims of this project were to provide a better perception of charity involvement in housing the mentally vulnerable and to identify any legal and practical problems these organisations face in providing this accommodation.<br> <br> The community care policy emphasises the community as the primary environment for psychiatric care. In the early days of the policy there was inadequate recognition of the fundamental role played by housing, leading to insufficient housing stock being made available to the mentally vulnerable. Since then, a general lack of funding, gaps in legislative provision, problems caused by homelessness and the need for effective multi-agency working have all contributed to the increasing involvement of charities in housing the mentally vulnerable. Alongside this, various factors have influenced the way in which housing is provided to this group. Indeed, the continued fragility of the funding regime, the multiplicity of referral bodies, the particula...
Pearce & Stevens' Trusts and Equitable Obligations, 2018
This chapter concerns the remedy of specific performance. The remedy of specific performance is a... more This chapter concerns the remedy of specific performance. The remedy of specific performance is a remedy which applies only where someone has already engaged to do something, but has then failed to do so. An equitable remedy of specific performance is a personal remedy against the defendant, as equity acts in personam, and disobedience is classified as a contempt of court which can lead to imprisonment or other action. The remedy provides an alternative to an award of damages, and it may sometimes be awarded alongside damages. The remedy of specific performance evolved to allow the courts to compel a defendant to perform a contractual obligation. At common law, if a contracting party failed to do what was promised, the injured party had a remedy only in damages.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter considers how clubs and societies can hold and manage property. Since some forms of ... more This chapter considers how clubs and societies can hold and manage property. Since some forms of club do not have a legal personality as such, there are real issues about how they can deal with property and whether this concerns everyday management, the receipt of gifts, or who is entitled to the club’s property if the club is dissolved. Trusts play a role in providing an explanation. The legal analysis of clubs also affects what happens should a club or society cease to exist. Clubs and societies can take a number of different legal forms: proprietary clubs, incorporated clubs and societies, members’ club, and societies that are not unincorporated associations.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter turns to constructive trusts, the second main category in informal trusts. At its si... more This chapter turns to constructive trusts, the second main category in informal trusts. At its simplest, the term ‘constructive trust’ describes the circumstances in which property is subjected to a trust by operation of law. Unlike an expressly declared trust, a constructive trust does not come into being solely in consequence of the express intention of a settlor. Unlike automatic resulting trusts, it does not fill gaps in beneficial ownership. Like presumed resulting trusts, intention can form an important element in its genesis. As such, a constructive trust is a trust which the law imposes on the trustee by reason of their unconscionable conduct.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter examines the nature of liability for breach of trust. Trusts impose obligations on t... more This chapter examines the nature of liability for breach of trust. Trusts impose obligations on the trustees, and the trustees can be held liable for breach of trust if their failure to meet the obligations imposed upon them causes a loss. The liability of a trustee for a breach of trust is a personal liability, and any remedy is available only against the trustee as an individual, and not against any specific assets. If the trustee in breach has died, their personal liability continues against their estate. There may be separate remedies in relation to any assets retained by the trustee or in the hands of a third party, and different remedies are also available for breach of fiduciary duty.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter looks at situations where the creation of a valid trust requires special formalities... more This chapter looks at situations where the creation of a valid trust requires special formalities. Firstly, it considers inter vivos declarations of trust, such as trusts of land and personal property, as well as sub-trusts. The chapter then discusses dispositions of subsisting equitable interests. Unlike the declaration of sub-trusts, a different formality requirement applies to dispositions of existing equitable interests, which emphasizes that it must be made in writing. There are, however, some exceptions to this rule, particularly in the context of taxation. In addition, this chapter turns to resulting and constructive trusts and declarations of trusts by will.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter considers the process of tracing. Tracing describes the process by which the law all... more This chapter considers the process of tracing. Tracing describes the process by which the law allows the original owner of property to identify and claim as his or her assets in the hands of a third party. Since tracing and following are proprietary concepts, they can only be used if there was initially, and there remains (in its original or any substituted form), an asset or a property to which claim can be made. Tracing is resorted to most frequently when the trustee is insolvent, so that a personal claim is of limited value. It is easy to forget that in most, if not all, cases of tracing or following, the trustee will have acted in breach of trust and will personally be liable.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter starts by outlining some of the changes in society that have driven the development ... more This chapter starts by outlining some of the changes in society that have driven the development of the law on disputes regarding the family home. When a family is living happily together, there are unlikely to be disputes about the ownership of the family home. However, where the relationship fails, or one of the parties dies, the division of assets—including the family home—can be a deeply divisive issue. Where a couple are married, their dispute can often be resolved through the divorce legislation. Even then, the chapter shows how equity may have a part to play.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter describes some policy limits in the law of equity. The rule against perpetuities pre... more This chapter describes some policy limits in the law of equity. The rule against perpetuities prevents owners tying their property up outside of the market for too long a period, otherwise known as the ‘perpetuity period’. The rules of perpetuity also account for accumulations and inalienability. Meanwhile, conditional and determinable interests, where the conditions are designed to influence the beneficiaries’ behaviour in a way that is contrary to public policy, are also restricted. Legislation also provides that trusts may be set aside if they are established with the object of defrauding the creditors of the settlor.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter looks in detail at the fixed trust. In a fixed trust, the interests of the beneficia... more This chapter looks in detail at the fixed trust. In a fixed trust, the interests of the beneficiaries have already been defined by the settlor. The trustee must carry out those terms and distribute the fund as has been specified. There are six uses of fixed trusts: bare trusts, nominee trusts, custodian trusts, non-trustee custodians, concurrent interests, and consecutive interests. The chapter also discusses the beneficial entitlement to defined interests, as well as the certainty of objects. It then shows how a fixed trust will continue for so long as the trustees hold the trust assets for the beneficiaries. Furthermore, it is possible for the principal or beneficiary under a bare or fixed trust to deal with his equitable interest without terminating the trust.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter is concerned with the arrangements which people can make to choose who will benefit ... more This chapter is concerned with the arrangements which people can make to choose who will benefit from their property after their death. It has been said that only two things are certain in life: death and taxes. The two are linked in another way, because death is an occasion on which the state levies taxes, primarily through inheritance tax. The tax treatment of inheritance arrangements is important and has considerable influence on the way in which people arrange their affairs. Moreover, the Law Commission has consulted on some wide ranging changes to the rules governing wills, on the basis that law needs to be updated to improve clarity, bring it up to date, and make it workable. Hence this chapter makes references to their proposals for reform.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter focuses on proprietary estoppel. Proprietary estoppel can confer proprietary rights ... more This chapter focuses on proprietary estoppel. Proprietary estoppel can confer proprietary rights despite the lack of a formal grant or transfer. It can be used in three situations: where a person mistakenly believes that they have an existing right in land and the real owner acquiesces in this belief, where a person is encouraged by the owner to believe that they have an existing right in land, and where a person is led by the owner to believe that they will have a right in the future if they act in a particular way. It has much in common with common intention constructive trusts, but is capable of operating in different circumstances. Most cases involve rights in land, but the doctrine is not confined to this kind of property.
Pearce & Stevens' Trusts and Equitable Obligations
This chapter explores trustees’ management powers. The management powers of trustees are concerne... more This chapter explores trustees’ management powers. The management powers of trustees are concerned with looking after property or funds. They do not allow the trustees to choose who benefits. In addition, the powers of management conferred upon a trustee are not the same in every case. Quite obviously, the powers of express trustees are likely to differ significantly from those of constructive trustees upon whom a trust has been imposed because of their improper conduct. In the latter case, the question of the trustees’ powers rarely arises. They are wrongdoers, who are, by definition, acting in breach of duty. How far they are authorized to act is, therefore, unlikely to be an issue.
Pearce & Stevens' Trusts and Equitable Obligations, 2018
This chapter considers the variation of beneficial interests. One route is for a trust to include... more This chapter considers the variation of beneficial interests. One route is for a trust to include provisions which allow the terms of the trust to be varied by the settlor, or by the trustees, or by a protector, in each case, with or without a requirement of consent by someone else. Variation by the beneficiaries is also explored, as is the surrender of a beneficial interest, the release of a power, the statutory powers of variation, and inherent court powers. The chapter next turns to consensual variation and variation under the inherent jurisdiction of the court. Miscellaneous statutory powers are also discussed. Finally, the chapter gives an overview of the Variation of Trusts Act 1958.
Pearce & Stevens' Trusts and Equitable Obligations, 2018
This chapter explores the powers and duties of trustees in relation to investment. It is in the c... more This chapter explores the powers and duties of trustees in relation to investment. It is in the context of investment that the concept of the trust fund is at its most apparent. The beneficiaries are entitled to share in the wealth which the trust assets represent. The component parts of that wealth are very much less important to the beneficiaries than its aggregate value. Thus, the issues which have to be addressed in the context of investment are first, when trustees are permitted to dispose of existing trust assets in order to substitute new assets; second, what assets may be substituted for the original ones; and third, the principles upon which those investments must be chosen. Over these issues, the chapter addresses a fundamental question on what the purpose of investment is.
Pearce & Stevens' Trusts and Equitable Obligations, 2018
This chapter discusses the trustees’ powers of maintenance and advancement. The powers of trustee... more This chapter discusses the trustees’ powers of maintenance and advancement. The powers of trustees can be divided into two categories: management powers and distributive powers. Management powers are those which relate to looking after the trust property, for instance, investing a fund or insuring a property. Distributive powers are those which relate to deciding who benefits. Generally the decision as to benefit will have been made by the settlor, by creating a fixed trust, by giving the decision to trustees through a discretionary trust, or by conferring a power of appointment on the trustees or a third party. In addition to this, however, there are some instances where trustees can make a decision as to who benefits from a trust fund, even where not expressly provided for by the settlor.
The aims of this project were to provide a better perception of charity involvement in housing th... more The aims of this project were to provide a better perception of charity involvement in housing the mentally vulnerable and to identify any legal and practical problems these organisations face in providing this accommodation.<br> <br> The community care policy emphasises the community as the primary environment for psychiatric care. In the early days of the policy there was inadequate recognition of the fundamental role played by housing, leading to insufficient housing stock being made available to the mentally vulnerable. Since then, a general lack of funding, gaps in legislative provision, problems caused by homelessness and the need for effective multi-agency working have all contributed to the increasing involvement of charities in housing the mentally vulnerable. Alongside this, various factors have influenced the way in which housing is provided to this group. Indeed, the continued fragility of the funding regime, the multiplicity of referral bodies, the particula...
Pearce & Stevens' Trusts and Equitable Obligations, 2018
This chapter concerns the remedy of specific performance. The remedy of specific performance is a... more This chapter concerns the remedy of specific performance. The remedy of specific performance is a remedy which applies only where someone has already engaged to do something, but has then failed to do so. An equitable remedy of specific performance is a personal remedy against the defendant, as equity acts in personam, and disobedience is classified as a contempt of court which can lead to imprisonment or other action. The remedy provides an alternative to an award of damages, and it may sometimes be awarded alongside damages. The remedy of specific performance evolved to allow the courts to compel a defendant to perform a contractual obligation. At common law, if a contracting party failed to do what was promised, the injured party had a remedy only in damages.
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