Hi! I have my exams in August (they were deferred due to an illness). I was revising Equity and came across the three different theories for disposition of beneficial interest (declaring yourself trustee for a 3rd party).
The three theories are regarding bare sub-trusts and non-bare sub-trusts. They are as follows:
- According to David Hayton, under the bare sub-trust, the original beneficiary can drop out of the picture (original beneficiary disappears, and the trustee simply holds the property on trust for x). The replacement of the original beneficiary with the sub-beneficiary is a s53(1)(c) disposition.
- The Penner theory says that a sub-trust is not a s53(1)(c) disposition, it is simply the declaration of a new trust, and because of this, we do not need s53(1)(c).
- Brian Green says we do need s53(1)(c) for a bare sub-trust because, the statute does not specifically say how much of the beneficial interest must be disposed of. so, he says, if it is all, it is s53(1)(c), and if it is some, it is also s53(1)(c).
In the exams, would I need to state all three theories, or could I just state one of them? The only one of those to have relevant approval in case law in the Penner theory in Nelson v Greening & Sykes.
Thank you! (:
Equity & Trusts - Disposition of beneficial interest. Watch
- Thread Starter
- 18-07-2016 18:17
- 19-07-2016 02:06
As always, the detail you need to go into depends on the importance of the point in the question as a whole. If you are answering an essay question focused on s 53(1)(c) then you will need to go into much more detail than if you are an answering a problem question where the s 53(1)(c) point only arises in relation to a small part of the question.
But now suppose that it is an essay question specifically about s 53(1)(c). Merely stating, "Hayton says X, Penner says Y, Green says Z, Nelson v Greening & Sykes supports Y" is not the way to get really good marks. That is journalism, what you need is analysis: why is one theory better than the other? For example, you might want to consider what the purpose of the s 53(1)(c) formality is, and what support that lends to the various theories. You might want to consider whether the original B really does drop out of the picture, or whether the cases supporting Hayton's theory really go no further than saying that T can, but not must, deal with the new B as a matter of practicality if all parties are happy with that arrangement. You might want to consider real commercial situations where property is held on a chain of sub-trusts and whether those would work in practice if s 53(1)(c) applied (intermediated securities for example).
Incidentally, Nelson v Greening v Sykes is not the only relevant case. There is also re Lashmar, Grainger v Wilberforce, and Sheffield v Sheffield (and probably many others).