EQUITY AND TRUST 2.2 CLASSIFICATION OF TRUST
- Express, implied/resulting and constructive trust.
- Private and public trust: the former is for the benefit of an individual or class of beneficiaries while the latter is for the benefit of the public as a whole.
- Trust of Perfect and imperfect obligation: The former has human beneficiaries while the latter is not enforceable by human beneficiaries.
- Executed and executory trust: the former entails where the precise beneficial interest of each beneficiary has been clearly specified by the testator. While the latter merely indicates a scheme of settlement and leaves the details to be filled in by the trustees.
- Completely and incompletely constituted: the former occurs where necessary steps have been taken to vest the trust property in the trustees for the benefit of the beneficiaries. All trusts arising under wills are regarded as completely constituted.
- Blind trust: where a number of donor pay into a trust fund for a beneficiary or beneficiaries who do not know them. E.g. when people donate for politicians to run campaigns.
- Bare Trust: the trustee just holds property for beneficiaries without any other obligation. This is used to circumvent tax liability. He only looks after the property.
Who can be a trustee?:
- Anyone qualified to take legal interest in property.
- A public trustee (created under statute).
- Trust Corporation: like UBA.
Capacity: same as general law of contract. If you can hold land, you can declare trust over land. Re Adams Kensington Vestry.
EXPRESS PRIVATE TRUST
Are trusts that are intentionally created by the owner of the property through the following ways:
- – Where the settlor declares inter vivos that he holds the property on trust for certain beneficiaries or
- – The settlor conveys property to trustees to hold in trust. Where it is a trust of land, it must be evidenced in writing in accordance signed by the party declaring with Section 7 and 9 of the Statue of Frauds, Section 78 PCL. Where pure personalty, oral declaration would suffice. In Grey V IRC, the court held that disposition of equitable interest should be in writing. The Lagos state law provides that writing or oral conveyance may suffice.
- Where the settlor disposes the property to trustee by will. (the trust arises after the death of the testator). Such testamentary trust must comply with the provisions of Section 9 of the Wills Act 1837 which requires that it be signed be the testator and the signature witnessed by two or more people at the foot thereof. Disposition made after the signature is invalid. A codicil can be used to amend the provisions of a will. It has been noted that Subsequent marriage revokes previous will-Section 18 Wills Act.
Note however, that equity would not follow the law where it would produce unjust consequences.
THE THREE CERTAINTIES.
This was laid down by Lord Eldon in Wright V Atkyns: “the words must be imperative, subject matter must be certain and the object must be as certain as the subject matter”. This was also noted by the court in Knight V Knight.
- Certainty of words/intention: although certain technical words are not required, the testator’s intention must be clearly manifest by his use of words. Although early courts of equity pardoned use of precatory words (I wish, I desire, and so on) where the intention of the testator was still manifest, it has been disallowed in recent times. Court held not trust in Re Adams and Kensington Vestry where the testator gave to his wife “in full confidence that she would do what is right as to the disposal thereof between my children”. Held that the wife took beneficially. Where there is no certainty of words, the donee takes beneficially.
- Certainty of Subject matter: the property to be bound by the trust must be precisely identified/described so must the separate beneficial interest to be taken by each beneficiary. “Such parts of my estate”-Re Jones “the residuary bulk of my residuary estate”-Palmer V Simmonds were held not to create a trust. Boyce V Boyce. (The Maria and Charlotte case). Although the courts may in certain instances apply the maxim; equality is equity. Where there is no certainty of subject matter, then there can be no trust of any property.
- Certainty of Objects: the identity of the beneficiaries must be indicated with certainty for the trustees to know whom they hold property for, else the trust would fail or result unless it is charitable. Re Astor’s Trust for the “maintenance of good understanding between nations” and “preservation of integrity of newspapers” failed. For “near relations” failed in Sale V Moore. However, in Re Coates, “to such friends as are nominated by my wife” was held as valid also in Re Beatty “to such persons… as they deed fit” was held to be valid. In respect of power of appointment among class, (trust powers) McPhail V Doulton specifies that such trust is valid if “it can be said with certainty that an individual is or is not a member of the class”. Uncertainty of objects usually creates a resulting trust. Any missing beneficiary may be presumed dead after 7 years. The trustee may then apply for a (Re Benjamin) Benjamin order to distribute the property among the available beneficiaries. A cypress doctrine may be utilized to apply the trust to a similar purpose intended by the beneficiary. Therefore, all trusts excluding charitable trusts must have known beneficiaries.
COMPLETELY AND INCOMPLETELY CONSTITUTED TRUST
When the property has become vested in the trustees for the benefit of the beneficiaries, it is completely constituted. The effect being that the beneficiaries can now sue to enforce. Where incompletely constituted, only a beneficiary that has given value can sue (for specific performance) as equity would not aid a volunteer (someone that has not given valuable consideration)-Jefferys V Jefferys. Husband, wife and legitimate issues of the marriage are not regarded as volunteers. The settlor must do all that is necessary to set a perfect trust
Modes of constituting a trust.
Conveyance to trustees: the donor’s interest must have been totally vested in the trustees. The rule was qualified in Milroy V Lord, to the effect that provided the settlor/donor has done everything required of him to execute the transfer and render the settlement binding, equity regards it as complete. In Re Rose, the rule in Milroy V Lords was qualified to everything within his power. Thus, until the donee’s legal title is complete, the donor holds the property as trustee for the donee. This may be done by conveyance to trustees or by declaration of trust. The appropriate methods of transfer must be used.
A covenant with trustees to settle property in the future or a defective conveyance to trustees are examples of incompletely constituted trusts.
A declaration of trust: by the settlor when he declares that he holds certain property on trust for beneficiaries.
Exceptional Cases where a trust would be held to be completely constituted.
- Secret Trusts: Dehors the will (operates outside the will) As was noted in Bannister V Bannister, the donor transfers property to a person who has (prior to the creation of the trust) agreed to hold it in trust for a beneficiary who is not stated in the will-Re Boyes. Here the testator wishes to conceal the identity of the beneficiary e.g. where the beneficiary is an illegitimate child or mistress-Re Boyes. It may be:
- Fully secret trust: property is given to the legatee without reference to any trust. Where the legatee was unaware of the trust intended by the testator until after his death, he takes beneficially.
- Half-Secret Trusts: here the will states that the legatee is to hold on trust but does not express the objects of the trust e.g. “for the purposes which I have communicated to him”. In this case, the legatee cannot take beneficially-Blackwell V Blackwell where the testator had given for “the purpose discussed” and the legatee had agreed. In this case, the court also noted that the provisions of the wills act do not apply to secret trust.
The court in Blackwell V Blackwell noted the conditions:
- The purpose must have been communicated by the testator to the legatee. In Re Keen, the court held that communication to one of the trustee would suffice.
- The testator must have intended a secret trust.
- The Legatee must have acquiesced… ie accepted to carry out the trust.
- If the testator subsequently varies the legacy by a codicil but fails to communicate such to the legatee, the secret beneficiary is entitled to the original amount only.
- Donationes Mortis Causa: described in Re Beaumont an act giving the donee absolute title of a gift provided the donor dies.
- The gift must have been made in contemplation of death in the near future. Notwithstanding that the cause was different. In Wilkes V Allington, the donor contemplated death by cancer but died of pneumonia. A gift in contemplation of suicide is invalid-Re Dudman. In some jurisdictions where suicide is no longer a crime would a different position have been reached?
- The gift takes effect on the donor’s death: if the donor survives, the property reverts to him.
- The donor must have delivered the subject matter or means of getting at it to the donee like documents for chose in action. The donor must part with dominion/control over the gift. In Re Weston, delivery of keys was sufficient.
- It must have been made in the presence of two witnesses,
Any property transferable by mere delivery is capable of passing by donation mortis causa
- The Rule in Strong V Bird: An imperfect gift to a donne shall be perfected if the donee subsequently becomes the executor or administrator of the donor’s estate. Provided the donor truly intended to gift the donee and the property becomes lawfully vested in the donee as personal representative.
A mere promise to give property in the future would not suffice: Re Freeland where it was a mere promise to give the plaintiff a motor car.
- Proprietary Estoppel: if the donor makes an imperfect gift and stands by while the donee alters his position. E.g. carrying out improvements on a land… the donor may be estopped from asserting his title and ordered to perfect the title-Dillwyn V LLewelyn.
TRUST OF IMPERFECT OBLIGATION.
These trusts have no human beneficiaries who can enforce it and are usually declared void. Established to serve some non-charitable purpose like maintenance of integrity among newspapers (Re Astor), discovery of new alphabets of 40 letters (Re Shaw). However, if the trustees wish to carry it out, the court would not prevent the performance of the trust. Else, the trust results. Imperfect trusts for the maintenance of testator’s horse (Re Dean), promotion of fox-hunting (Re Thompson) and maintenance of certain private graves in graveyard (Re Hooper), erect a memorial stone over the testator’s grave (Adeseye V Williams) have been held valid.
RESULTING AND CONSTRUCTIVE TRUSTS.
RESULTING TRUST. Resulting trust comes from the Latin resalire which means to jump back.
Occurs where beneficial interest results/goes back to the estate of the donor. Lord Hardwicke in Lloyd V Spillet noted that it may automatic or presumed resulting trust. They differ from express trust in that it arises from the presumed intention of the donor. Megarry VC noted in Vandervell V IRC that it means what the testator would have intended if they had thought about it. The creation of resulting trust does not depend upon formalities and an infant may be a resulting trustee. In Re Vinogradoff, the settlor transferred E800 war loan to her infant grand-daughter. Court held… resulting trust. It may occur in the following circumstances:
- Where an express trust fails: where the trust does not fulfil the three certainties or some other factor-Barclays Bank V Quistclose. In Re Ames Settlement, a father established a marriage settlement for his son. When the son’s marriage was declared a nullity, the court held that the property resulted since there was no marriage in the first place. In Re Ball.
- Where the beneficial interest in the trust is not fully exhausted: ie where surplus money remains after carrying out the express trust. In Re Abbott, this was the case where trust money for the maintenance of two deaf and dumb ladies remained after their death. Similar fact and conclusion reached in Re Osoba. Similarly in Re Gillingham Bus Disaster Fund where 24 Royal Marines were killed and others injured while marching through the streets of Gillingham in Kent by a runaway bus. The disaster fund was set up to finance the burial and help the disabled. Surplus remained after these. The remainder was to result but since it was impossible, it was used to build a memorial to those who died. Also in Re Obabunmi Pedro where trust for training and education of grandchildren remained after they had all been trained. Except from the facts and circumstances, it can be shown that the donors showed NO intention to retain the surplus. In Re Andrews Trust, public donated to a fund for the education of a clergy’s children. The court held that the surplus should be shared to the children as the subscribers did not show an intention to retain any interest in the property. This should have been the ratio in the other cases too. Where there is neither an intention for the beneficiaries or trustees to take the surplus, the state can take it.
- Purchase in the name of another and voluntary conveyance to a volunteer: Generally, where A paid for property which is conveyed to B who provides no consideration, it is presumed that B holds the property in resulting trust for A who advanced the money-Dyer V Dyer. Also where two or more people contribute money which is used to purchase property in the name of one, he is presumed to hold it in resulting trust for the others. In Ukatta V Emembo, The plaintiff paid #2,000 on agreement that the defendant would assign a lease to him. The defendant however obtained a renewal in his own name. Court held that since the plaintiff provided the whole purchase price, the defendant is presumed to hold in resulting trust. An exception to this rule is the presumption of advancement that is where the true purchaser is the legitimate father, husband or person in loco parentis to the person in whose name the property was purchased. E.g. where a father purchases property in the name of his legitimate child. In Silver V Silver, the court held that it was a gift when the husband purchased property in his wife’s name. Where such advancement exists, it is difficult to rebut. In Grey V Grey, this presumption was not rebutted notwithstanding that the son allowed the father to receive rents in respect of the property. If it is the wife, that buys in husband or child’s name, then resulting trust arises-Mercier V Mercier. Another exception where the donor’s intention shows to the contrary (ie that he does not want an interest in the property). In recent times, the presumption of advancement in marriage has been discountenanced. Lord Diplock in Pettit V Pettit was of the opinion that it has outlived its usefulness. Advancement has been abolished in Section 198 and 199 of the Equality Act 2010 of UK in respect of things done after the commencement of the Act.
- Note (as was done in Tinker V Tinker) noted that the presumption of resulting trust cannot be rebutted where there is illegality.
Lord Denning noted in Hussey V Palmer that it is a trust imposed by law whenever justice and good conscience require it… enabling an aggrieved party to obtain restitution… even though there is no agreement between them. Imposed on grounds of conscience by the courts without reference to the implied intention of the settlor. This is treated as the remedy for unjust enrichment in America although under English law the scope is narrower. Constructive Trust can arise in the following instances:
- Where the trustees/other fiduciaries make unauthorized profits: as was noted in De Bussche V Alt, secret profits should not be made by a person in fiduciary relationship. Similar position was followed in Bray V Ford. The trustee should ensure that his interest does not conflict with that of the beneficiary. Constructive trust was applied in Keech V Sandford where the defendant trustee of a lease for an infant renewed the lease in his own name. A similar position was reached in Ukatta V Emembo where the plaintiff paid for a lease and the defendant acquired it in his own name. In Re Bliss, the court held that where a person does not stand in a fiduciary position or special position and has not abused any power, this rule would not apply. In AG for Hong Kong V Reid, Mr Reid the director of public prosecutions had accepted bribe to use his office to obstruct the prosecution of certain criminals. The court held that he held the money in trust for the crown. In Reading V AG, the court held that the sergeant of British Army who used his office to make illegal gains held the gains as a constructive trustee. A fiduciary who acquires incidental profit in the course of executing his duties holds it in constructive trust for the beneficiaries-Re Gee.
- Where a stranger intermeddles with trust property: after knowing (actual or constructively) that it is trust property or assists the trustee in dealing fraudulently with it. This constructive trust would not apply to bona-fide purchaser for value without notice. Where no value but without notice, he is an innocent volunteer and if he has mixed the funds with his, he has an equal claim with the beneficiaries-Re Diplock.
- Knowing receipt of trust property from an express trustee shall create constructive trust.
- Where a binding contract for the sale of land has been entered into, the vendor is constructive trustee for the purchaser until completion by conveyance-Lysaght V Edwards. However, unlike a trustee the vendor is allowed to keep rents and benefits accruing from the land before the completion date.
- In Mortgage:
- A Mortgagee is constructive trustee for the mortgagor where surplus remains after sale of mortgaged property provided principal, interest and costs due have been deducted-Section 21 of the Conveyancing Act 1881.
- If a mortgagee enters into possession of the mortgagor’s land, he is a constructive trustee for all rents and profits accruing from the property.
- Where an equitable mortgage is created by deposit of title deeds, the mortgagor is constructive trustee of the legal estate for the mortgagor and specific performance can be granted in deserving circumstances-Russell V Russell.
- Where a person acquires property by defrauding another he can be compelled to hold same as constructive trustee. E.g in secret trust.
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