The Constitution of Trusts

Questão	Responda
Milroy v Lord- Constitution of Trusts	Lord was trustee for Milroy. However, settlor did not transfer the shares to Lord, only the power to distribute the dividends ∴ gift was incomplete. A settlor may constitute a trust if he transfers the property to a trustee for the purposes of the settlement or declares that he himself holds it in trust for those purposes.
Richards v Delbridge- Constitution of Trusts	Richards attempted transferring a lease over, however there was no deed and so no gift. Settlor need not use the words "I declare myself trustee" but must use expressions which have the same meaning. He may transfer legal title and divest himself of legal ownership by declaring another trustee, or may retain legal ownership and deprive himself of beneficial ownership by declaring himself trustee
Re Cozens- Constitution of Trusts	there must be a present irrevocable declaration of trust (although exact words not needed).
Jones v Lock- Constitution of Trusts	Father wrote a gift cheque for baby son but used "loose conversation". Although there was an intention to benefit there was real declaration to constitute the trust. Equity will not perfect and imperfect gift in order to fulfil a declaration of constitution.
Pappadakis v Pappadakis- Constitution of Trusts	Husband's life insurance policy was held on discretionary trust for himself, wife and child, the husband attempted to add second child as beneficiary by improperly executed deed. The deed was held to be invalid, and so was subsequently held to be a failed gift. The trust was not effectively constituted.
Paul v Constance- Constitution of Trusts	Constance had bank account which he claimed to his mistress was "as much yours as mine" repeated over time. This showed an intention to give the property away absolutely and so effectively declared the constitution of the trust.
Don King Productions v Warren (no 1)- The Constitution of Trusts	the general conduct of the parties is relevant in determining the intent of the parties and whether they intended to declare constituting the trust.
Shah v Shah- The Constitution of Trusts	attempted to give shares as a gift "I am holding shares immediately for you" however, the court held the wording amounted to a trust: the intention of a declaration of trust is "manifested by the words he has used in the context of all the relevant facts"
Re Rose- The Constitution of Trusts	Deceased executed a transfer of shared to his wife a s a gift of love and affection. The transfer was not registered by the company until later by which time the donor had passed away. Held, he had done all he could in his own power to transfer the shares and fulfilled the "every effort rule". Note: the gift becomes enforceable from the time of transfer instead of registration due to "registration gap".
T Choithram International SA- The Constitution of Trusts	A man lying on his deathbed sought to declare a trust over his property but failed to transfer legal title in the property to all trustees- the trust was not validly constituted. Held, a valid trust was created, applying the Re Rose, the settlor could be taken to have done all that was necessary to create a trust.
Re Fry- The Constitution of Trusts	Transferor had not obtained Treasury approval which was mandatory to effect the transfer of the property, he had not done everything required of him before his death.
Mascall v Mascall- The Constitution of Trusts	father wished to transfer land to his son and so gave him a deed of transfer and the land certificate. Then they fell out and the father argued that the property was still his because the son had not registered the deed in his name through the land registry. Held, the father had done everything in his power to make the transfer effective. Without registration the legal title had not passed, but title had passed in equity which meant that the property was held on trust for the son by the father.
Pennington v Waine- The Constitution of Trusts	testator gave documents to her agent and told donee her intentions. Agent assured the testator that there was no more for them to do despite the fact that ownership had not been registered by. The testator later died and registration still had not occurred. The 'every effort rule' had not been fulfilled as the testator was aware of the issue and could have taken matters back into her own hands before her death it would have been unconscionable for her to have to do so therefore the transfer was passed.
Zeital v Kaye- The Constitution of Trusts	The deceased owner of a shareholding attempted to transfer the shareholding but the share certificates were missing. Held, he had not done everything in his power to order new copies and so the trust failed.
Curtis v Pulbrook- The Constitution of Trusts	Believed Pennington v Waine was actually an exception to the Rose Rule as opposed to an extension upon the rule
Strong v Bird- The Constitution of Trusts (Fortuitous Vesting)	Bird borrowed money from his step-mother and agreed to pay back the loan through reduced rent from her. However, she mostly continued to pay full rent until she died. Upon death, Bird was appointed in her will as the executor of her estate. Held, the appointment of Bird as the executor was evidence that the loan to Bird was a gift to him and there was a continuing intention to give. It would be ridiculous for the executor to sue himself for the debt, therefore the debt was "cancelled". 1. The donor must have intended to make an inte vivos gift. 2. The intention for the gift must be continuous- it must have persisted until the donor's death. 3. The donee is appointed the donor's executor (or administrator) 4. The subject matter of the intended gift must have been capable of enduring the death of the donor.
Re Stewart- The Constitution of Trusts (Fortuitous Vesting)	The rule in Strong v Bird also applies where imperfect gifts are made to the donee whom is also appointed executor of the will. The gift becomes "perfected".
Re James- Constitution of Trusts (Fortuitous Vesting)	Son inherited his father's house and made an imperfect transfer to the housekeeper. After he died the housekeeper was appointed the administrator of the house thus requiring the legal title and perfecting the imperfect gift. Strong v Bird also applies to administrators, not just executors.
Re Conin- The Constitution of Trusts (Fortuitous Vesting)	Re James deceased did not nominate their executor, it is hard for the court to do so because it becomes a "lottery" if one has a debt to fulfil.
Re Ralli's Will Trusts- Constitution of Trusts (Fortuitous Vesting)	Two sisters had been left father's residuary estate. One died without children and left her's to her sister's own children. The settlement was held to be constituted under the living sister's marriage certificate as her husband already owned the legal title to the estate as a trustee, therefore the remainder residuary interest must have fallen under the marriage certificate. This extended the rule in Strong v Bird to apply to imperfect trusts. A trust may be perfected and constituted where legal title is already vested in another trustee, albeit in a different capacity.
Re Beaumont- The Constitution of Trusts (Deathbed Gifts)	A deathbed gift is neither inter vivos nor testamentary, it is a gift which is made inter vivos subject to the donor's death. cheques are seen to be revocable property and therefore cannot be passed under a trust after the donors death, for a cheque to pass under a trust it must be cashed within the donor's lifetime or it must be given in contemplation of death.
Sen v Headey- The Constitution of Trusts (Deathbed Gifts)	the gift if revocable until death occurs
Tate v Hilbert- The Constitution of Trusts (Deathbed Gifts)	Uncle intended to make an immediate and outright gift as opposed to a conditional gift therefore this is not a deathbed gift.
Cain v Moon	1. Gift or donation must be made in contemplation (not necessarily expectation) of death 2. If the circumstances do not occur the property must be capable of going back to the donor, it gift must be conditional upon death. 3. There must have been delivery to the donee of the subject matter of the gift.
Duffield v Ewles- The Constitution of Trusts (Deathbed Gifts)	There must be an impending risk of death (the conceived approach)
Re Craven's Estate- The Constitution of Trusts (Deathbed Gifts)	If death is within near future, it must be learnt off an identified source
Gardner v Parker- The Constitution of Trusts (Deathbed Gifts)	circumstances rather than express words can show contemplation of death
Re Kirbley- The Constitution of Trusts (Deathbed Gifts)	The donor was worn out but not ill, the gift was not in contemplation of death.

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The Constitution of Trusts

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