ferrara_ma
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Finally Monica emailed her children, Erica Geller-Bing and Jack Geller-Bing on Wednesday 26th January 2020 with the following message:
Dear Erica and Jack,
I have decided that from today I am holding half of my shares in the local restaurant,
Javu, for you both, jointly.
Mom xx
Unfortunately Monica died in a tragic accident at work on 5th February 2020. Advise Chandler Bing and Ross Geller as to the distribution of her estate.


Im a bit confused on whether this a inter-vivos express trusts with an issue with share or something else ?

Also , even though the shares arent registered etc can the trust still be valid if we use equity and pennignton v waine ?


i really appreciate your help/advice
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Lawschoolhack
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Yes you need to ' use equity'. Why use Pennington? What are you trying to achieve? There is no issue regarding an imperfect gift.
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ferrara_ma
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(Original post by Lawschoolhack)
Yes you need to ' use equity'. Why use Pennington? What are you trying to achieve? There is no issue regarding an imperfect gift.
because equity will not perfect an imperfect gift . although with pennington v waine we can show that using equity works
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(Original post by ferrara_ma)
because equity will not perfect an imperfect gift . although with pennington v waine we can show that using equity works
Monica has not even attempted to make a gift, so imperfect gifts do not come into it. She has tried to create a trust where she is the trustee, so she does not need to transfer legal title to the trust assets and any registration requirements that might apply when transferring legal title to shares are therefore irrelevant (which is what I think you were hinting about in the original post).

What is the subject matter of the trust?
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Lawschoolhack
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(Original post by ferrara_ma)
because equity will not perfect an imperfect gift . although with pennington v waine we can show that using equity works
but there isn't an imperfect gift.
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ferrara_ma
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(Original post by Forum User)
Monica has not even attempted to make a gift, so imperfect gifts do not come into it. She has tried to create a trust where she is the trustee, so she does not need to transfer legal title to the trust assets and any registration requirements that might apply when transferring legal title to shares are therefore irrelevant (which is what I think you were hinting about in the original post).

What is the subject matter of the trust?
oh ok , it makes sense now , are you sure about this ? cause I haven't found any notes that says that with self-trustees registration and all is not required ... The subject matter is the shares but then we don't know if they are identical or not ?
Is it still an inter-vivos trust ? the problem is that now that she is dead how the shares are going to the children ?
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Lawschoolhack
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(Original post by ferrara_ma)
oh ok , it makes sense now , are you sure about this ? cause I haven't found any notes that says that with self-trustees registration and all is not required ... The subject matter is the shares but then we don't know if they are identical or not ?
Is it still an inter-vivos trust ? the problem is that now that she is dead how the shares are going to the children ?
100% certain regarding 'constitution'. Who do you think the ownership of the shares needed to be registered with? The property owner IS the trustee. Another contributor has already make this point. If you start discussing transfer of ownership between the same person you will be making a very serious error.

You can only declare an inter vivos trust whilst you are alive.

You are correct that subject matter IS an issue
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ferrara_ma
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(Original post by Lawschoolhack)
100% certain regarding 'constitution'. Who do you think the ownership of the shares needed to be registered with? The property owner IS the trustee. Another contributor has already make this point. If you start discussing transfer of ownership between the same person you will be making a very serious error.

You can only declare an inter vivos trust whilst you are alive.

You are correct that subject matter IS an issue
Ok , I understand better .
Although , the problem is that now she died , how are the shares supposed to go the children ?
Or is it anyway completely an invalid trust because of the subject matter ?
And even if they there is no transfer of legal title , isn't there a transfer of equitable tile ?
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Lawschoolhack
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(Original post by ferrara_ma)
Ok , I understand better .
Although , the problem is that now she died , how are the shares supposed to go the children ?
Or is it anyway completely an invalid trust because of the subject matter ?
And even if they there is no transfer of legal title , isn't there a transfer of equitable tile ?
I'm sorry, but you need to do some of your own research on this rather than simply posting a list of further questions. Go back to basics to ensure that you understand how a trust works. Also work out whether there is certainty of subject matter of not.

Perhaps someone else is prepared to pick this one up.
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ferrara_ma
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(Original post by Lawschoolhack)
I'm sorry, but you need to do some of your own research on this rather than simply posting a list of further questions. Go back to basics to ensure that you understand how a trust works. Also work out whether there is certainty of subject matter of not.

Perhaps someone else is prepared to pick this one up.
no problem , thanks a lot for your help anyway .
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(Original post by ferrara_ma)
And even if they there is no transfer of legal title , isn't there a transfer of equitable tile ?
You don't need any formalities to self-declare a trust of shares (or of any other property other than interests in land, as far as I can remember).

It is a mistake to think that there is a "transfer" of an equitable title when a trust is declared over property which was previously owned outright by the settlor. If that was the case then a settlor would always have to comply with s. 53(1)(c) LPA 1925, whatever the trust property was, but that is not the law (and see, e.g., Westdeutsche and Vandervell v IRC).

As there are no formality requirements, you just need to ask whether the three certainties are satisfied. Try and do that yourself.

I agree with Lawschoolhack that you don't really seem to understand the very basics of trusts at the moment.
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help2017
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Hi, (please answer)
What would happen in this situation and what principles would apply?:

A wishes to transfer B 6000 shares to hold on trust for C. A fills out the stock transfer form and hands it to B, B does not get round to registering the shares (i know in this instance re rose would perfect the transaction as the onus on B to register and as long as A has done eveyrhting possible its complete)...

But

what if it later becomes clear that A forgot to sign the form and having had a row with C, she now announces that she wants the shares back? --> how would i answer this second part/ what principles would apply

IM REALLY confused please help
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Lawschoolhack
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(Original post by help2017)
Hi, (please answer)
What would happen in this situation and what principles would apply?:

A wishes to transfer B 6000 shares to hold on trust for C. A fills out the stock transfer form and hands it to B, B does not get round to registering the shares (i know in this instance re rose would perfect the transaction as the onus on B to register and as long as A has done eveyrhting possible its complete)...

But

what if it later becomes clear that A forgot to sign the form and having had a row with C, she now announces that she wants the shares back? --> how would i answer this second part/ what principles would apply

IM REALLY confused please help
Has A done everything that they can...????? (Get the shares back from who? Who do you think they have been transferred to?)

Try to take step back and think about it really logically. If you can't use Re Rose etc what is the case which 'extends' the principle in Re Rose
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help2017
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(Original post by Lawschoolhack)
Has A done everything that they can...????? (Get the shares back from who? Who do you think they have been transferred to?)

Try to take step back and think about it really logically. If you can't use Re Rose etc what is the case which 'extends' the principle in Re Rose
I understand what your saying but my question is:
A hasnt done everything he can because it later became apparent that A forgot to sign the form, therefore the formalities haven't been met..but would this reign over the fact that he handed over the form to B having thought he completed it, and therefore it may be 'unconscionable' to deny the transfer or take them back from B? But then again would it really be 'unconscionable' if B never really got round to registering in the first place? did the shares transfer in the first place?
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Lawschoolhack
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(Original post by help2017)
I understand what your saying but my question is:
A hasnt done everything he can because it later became apparent that A forgot to sign the form, therefore the formalities haven't been met..but would this reign over the fact that he handed over the form to B having thought he completed it, and therefore it may be 'unconscionable' to deny the transfer or take them back from B? But then again would it really be 'unconscionable' if B never really got round to registering in the first place? did the shares transfer in the first place?
You have got the point! It's Pennington. The shares didn't transfer - the formalities to complete the transfer of legal title to the shares have not been completed. You need to consider all the facts and decide if it would be unconscionable (which is what Arden LJ says). The facts are similar to Pennington. If it's not clear - give the arguments for both sides.
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(Original post by Lawschoolhack)
You have got the point! It's Pennington. The shares didn't transfer - the formalities to complete the transfer of legal title to the shares have not been completed. You need to consider all the facts and decide if it would be unconscionable (which is what Arden LJ says). The facts are similar to Pennington. If it's not clear - give the arguments for both sides.
Thankyou! so am i right in saying she can basically get them back, because they were never transferred to begin with?
Also what does this mean for C? is she just left with nothing?
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Lawschoolhack
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(Original post by help2017)
Thankyou! so am i right in saying she can basically get them back, because they were never transferred to begin with?
Also what does this mean for C? is she just left with nothing?
It’s not that simple. It depends on whether equity will perfect the gift. If yes- then she will hold them on trust as per Ada Crampton
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(Original post by Lawschoolhack)
It’s not that simple. It depends on whether equity will perfect the gift. If yes- then she will hold them on trust as per Ada Crampton
I have concluded that equity wont perfect the gift. It is not unconscionable nor has B relied on A's wishes to his detriment in any way? So basically under this reasoning the shares stay with A, and C gets nothing? does that sound sensible?


Also in terms of covenants, If a makes a promise with b to hold on trust for c, when determining if there was valid consideration, or a marriage consideration- am i finding these between A and B or A and C? super confused...
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