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Hi,
As above realy, how would I approach a problem question on certainties (equity and trusts).
Is there a basic structure that I should follow?
Thank you, Sammi
As above realy, how would I approach a problem question on certainties (equity and trusts).
Is there a basic structure that I should follow?
Thank you, Sammi
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#2
(Original post by xsammi-jox)
Hi,
As above realy, how would I approach a problem question on certainties (equity and trusts).
Is there a basic structure that I should follow?
Thank you, Sammi
Hi,
As above realy, how would I approach a problem question on certainties (equity and trusts).
Is there a basic structure that I should follow?
Thank you, Sammi
- mention three certainties are required
-go through whether there is certainty of intention (precatory words?)
- go through whether there is certainty of subject matter (gift defined? order specified?
- go through certainty of objects (most difficult - look at what type of disposition it is, then apply the relevant test, consider administrative unworkability/capriciousness)
-sum up
I may have missed some things out there, apologies if i have.
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#3
- Three certainties, constitution and formalities
- Terms of the trust and powers of the trustees: think carefully about what the terms of the trust are and what the trust actually entails, think about the different ways in which it could be understood. ALso think about what the trustees' powers are, if relevant.
- Breach: has there been a breach? To answer this you need to carefully consider the duties of the trustees and think about what they have breached any of those duties.
- Personal remedy against the trustees: Which trustees might be personally liable and why? What is the quantum
- Personal remedy against third partes: Might knowing receipt or an action for money had and received be available?
- Proprietary remedies: Is a proprietary remedy available? If so, are there any advantages to a proprietary remedy?
Of course, you need to use your discretion. In most equity questions, many of the above points won't be an issue; questions will generally be focused on certainties/formalities/constitution; terms, powers and breach; or remedies. But its a useful checklist to run through, there are often important points that people miss so do think about everything.
There will be additional issues where a resulting, constructive or Quistclose trust is involved, though even then I think you can break things down into the three fundamental questions of 1) where there is a trust, 2) what the trustees can do and what they can't, 3) remedies.
- Terms of the trust and powers of the trustees: think carefully about what the terms of the trust are and what the trust actually entails, think about the different ways in which it could be understood. ALso think about what the trustees' powers are, if relevant.
- Breach: has there been a breach? To answer this you need to carefully consider the duties of the trustees and think about what they have breached any of those duties.
- Personal remedy against the trustees: Which trustees might be personally liable and why? What is the quantum
- Personal remedy against third partes: Might knowing receipt or an action for money had and received be available?
- Proprietary remedies: Is a proprietary remedy available? If so, are there any advantages to a proprietary remedy?
Of course, you need to use your discretion. In most equity questions, many of the above points won't be an issue; questions will generally be focused on certainties/formalities/constitution; terms, powers and breach; or remedies. But its a useful checklist to run through, there are often important points that people miss so do think about everything.
There will be additional issues where a resulting, constructive or Quistclose trust is involved, though even then I think you can break things down into the three fundamental questions of 1) where there is a trust, 2) what the trustees can do and what they can't, 3) remedies.
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(Original post by Zacho)
Not really an exact structure but i always go through each certainty in turn for each provision. Always go through all 3 even if just saying something like "there is clear certainty of subject matter here as the amount is specified"
- mention three certainties are required
-go through whether there is certainty of intention (precatory words?)
- go through whether there is certainty of subject matter (gift defined? order specified?
- go through certainty of objects (most difficult - look at what type of disposition it is, then apply the relevant test, consider administrative unworkability/capriciousness)
-sum up
I may have missed some things out there, apologies if i have.
Not really an exact structure but i always go through each certainty in turn for each provision. Always go through all 3 even if just saying something like "there is clear certainty of subject matter here as the amount is specified"
- mention three certainties are required
-go through whether there is certainty of intention (precatory words?)
- go through whether there is certainty of subject matter (gift defined? order specified?
- go through certainty of objects (most difficult - look at what type of disposition it is, then apply the relevant test, consider administrative unworkability/capriciousness)
-sum up
I may have missed some things out there, apologies if i have.
(Original post by jacketpotato)
- Three certainties, constitution and formalities
- Terms of the trust and powers of the trustees: think carefully about what the terms of the trust are and what the trust actually entails, think about the different ways in which it could be understood. ALso think about what the trustees' powers are, if relevant.
- Breach: has there been a breach? To answer this you need to carefully consider the duties of the trustees and think about what they have breached any of those duties.
- Personal remedy against the trustees: Which trustees might be personally liable and why? What is the quantum
- Personal remedy against third partes: Might knowing receipt or an action for money had and received be available?
- Proprietary remedies: Is a proprietary remedy available? If so, are there any advantages to a proprietary remedy?
Of course, you need to use your discretion. In most equity questions, many of the above points won't be an issue; questions will generally be focused on certainties/formalities/constitution; terms, powers and breach; or remedies. But its a useful checklist to run through, there are often important points that people miss so do think about everything.
There will be additional issues where a resulting, constructive or Quistclose trust is involved, though even then I think you can break things down into the three fundamental questions of 1) where there is a trust, 2) what the trustees can do and what they can't, 3) remedies.
- Three certainties, constitution and formalities
- Terms of the trust and powers of the trustees: think carefully about what the terms of the trust are and what the trust actually entails, think about the different ways in which it could be understood. ALso think about what the trustees' powers are, if relevant.
- Breach: has there been a breach? To answer this you need to carefully consider the duties of the trustees and think about what they have breached any of those duties.
- Personal remedy against the trustees: Which trustees might be personally liable and why? What is the quantum
- Personal remedy against third partes: Might knowing receipt or an action for money had and received be available?
- Proprietary remedies: Is a proprietary remedy available? If so, are there any advantages to a proprietary remedy?
Of course, you need to use your discretion. In most equity questions, many of the above points won't be an issue; questions will generally be focused on certainties/formalities/constitution; terms, powers and breach; or remedies. But its a useful checklist to run through, there are often important points that people miss so do think about everything.
There will be additional issues where a resulting, constructive or Quistclose trust is involved, though even then I think you can break things down into the three fundamental questions of 1) where there is a trust, 2) what the trustees can do and what they can't, 3) remedies.
You are both amazing.
Zacho - I thought there would be more to it, but it seems that maybe I was overcompicating it!! Although,is there any chance you could explain the certainty of objects..... I get the first two stages (intention and subject matter) but I get confused at this point.
xx
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#5
(Original post by xsammi-jox)
Thank you!!
You are both amazing.
Zacho - I thought there would be more to it, but it seems that maybe I was overcompicating it!! Although,is there any chance you could explain the certainty of objects..... I get the first two stages (intention and subject matter) but I get confused at this point.
xx
Thank you!!
You are both amazing.
Zacho - I thought there would be more to it, but it seems that maybe I was overcompicating it!! Although,is there any chance you could explain the certainty of objects..... I get the first two stages (intention and subject matter) but I get confused at this point.
xx
With certainty of objects, all you need to do is be able to identify with sufficient certainty who the beneficiaries of the trust are. Where the beneficiary is named in the will, there are no problems. However, where the provision gives a class of objects you have issues (i.e. "friends" "relatives "work buddies").
In this case, you decide the type of disposition (fixed trust, discretionary trust, power) and then apply the relevant test ("complete list" or "is or is not") to see if the provision passes the test. Consider relevant case law here as well. Then consider whether the gift is administrably unworkable or capricious.
I think that is everything. Does that make sense?
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It makes sense, but could you possibly claify a few more things (if you don't mind!)?
Firstly, how would you decide the type of disposition? Is it just through the info given in the scenario?
And what is meant by unworkable/capricious - how would I know this?
Thank you!!!
Firstly, how would you decide the type of disposition? Is it just through the info given in the scenario?
And what is meant by unworkable/capricious - how would I know this?
Thank you!!!
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(Original post by Zacho)
What i wrote is the basic outline i adopt to a question dealing with 3 certainties. There is a lot more to include in each certainty from the case law.
With certainty of objects, all you need to do is be able to identify with sufficient certainty who the beneficiaries of the trust are. Where the beneficiary is named in the will, there are no problems. However, where the provision gives a class of objects you have issues (i.e. "friends" "relatives "work buddies").
In this case, you decide the type of disposition (fixed trust, discretionary trust, power) and then apply the relevant test ("complete list" or "is or is not") to see if the provision passes the test. Consider relevant case law here as well. Then consider whether the gift is administrably unworkable or capricious.
I think that is everything. Does that make sense?
What i wrote is the basic outline i adopt to a question dealing with 3 certainties. There is a lot more to include in each certainty from the case law.
With certainty of objects, all you need to do is be able to identify with sufficient certainty who the beneficiaries of the trust are. Where the beneficiary is named in the will, there are no problems. However, where the provision gives a class of objects you have issues (i.e. "friends" "relatives "work buddies").
In this case, you decide the type of disposition (fixed trust, discretionary trust, power) and then apply the relevant test ("complete list" or "is or is not") to see if the provision passes the test. Consider relevant case law here as well. Then consider whether the gift is administrably unworkable or capricious.
I think that is everything. Does that make sense?
Thank you!
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#8
(Original post by xsammi-jox)
It makes sense, but could you possibly claify a few more things (if you don't mind!)?
Firstly, how would you decide the type of disposition? Is it just through the info given in the scenario?
And what is meant by unworkable/capricious - how would I know this?
Thank you!!!
It makes sense, but could you possibly claify a few more things (if you don't mind!)?
Firstly, how would you decide the type of disposition? Is it just through the info given in the scenario?
And what is meant by unworkable/capricious - how would I know this?
Thank you!!!
on a basic level... unworkable is where the obligations on the trustee are too onerous (I think the case is called R v District Auditor exparte West Yorkshire Metropolitan CC where a trust for the whole of West Yorkshire was too onerous for trustee)
capricious - Re Manisty - basically whether the trust provision is "silly" (for want of better word!)
Look this up in a textbook/lecture notes as this is just a basic outline and you would need to understand them in more depth for a problem question.
Hope that helps! And feel free to PM me if you are unsure on anything else, it is actually helping me remember things by helping others!
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#9
Isn't unworkable more related to discretionary trusts, and capriciousness linked to powers?
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#10
(Original post by Over_The_Odds)
Isn't unworkable more related to discretionary trusts, and capriciousness linked to powers?
Isn't unworkable more related to discretionary trusts, and capriciousness linked to powers?
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#12
(Original post by Zacho)
I'd never really thought about it like that. i know only a trust can be unworkable. I guess i made a mistake above. I think i need to go over powers again.
I'd never really thought about it like that. i know only a trust can be unworkable. I guess i made a mistake above. I think i need to go over powers again.
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#14
(Original post by JOJO X)
hi guys, does anyone have any case examples for unworkability?
thank you :-)
hi guys, does anyone have any case examples for unworkability?
thank you :-)
It has been mentioned by judges in other cases. I think it was said in Mcphail v Doulton that a class is unworkable if it is so "hopelessly wide" to look anything like a class. And Re Gulbenkian said that it is where the work needing to be done by the trustee is completely disproportionate to the value gained.
That is what i have learnt for it anyway! It only applies to discretionary trusts as well not powers (Re Hays)
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#15
thank you zacho. i appreciate the help.
did not realise about the trust/power application aswell so thank you
:-)
did not realise about the trust/power application aswell so thank you
:-)
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#16
hiim answering my tutorial question but seems like i dont know how to answer it.the issue regarding the certainty of intention and i get confused when my notes (given by my lecturer ofcourse) have a different subpoint under certainty of intention. then i asked my friend how to answer it. she said i just need to refer to one case as the fact of the tutorial case is same as the case (Re Adams and The Kensington Vestry). the problem is, how to answer it? how to apply? if there someone willing to help or answer my question, may God bless u always tqvm ;D
tqvm ;D
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