Equitable Principles

• Types of Trust

  • Fixed trust - trustee must give property out to the named objects + has no discretion as to how it's to be distributed

  • Discretionary trust - trustee must give property out to the named objects + has discretion as to how it's to distributed

  • Discretionary power of appointment - trustee has discretion as to whether & to what extent to give the property out to named objects and, to the extent that he decides to do so, in what proportions

  • Fixed power of appointment (least common) - trustee has discretion as to whether to give out the property to the named objects but, if he decides to give out, must do so in pre-determined proportions.

• Trusts vs Powers

  • Trusts impose obligations on trustees. A mere power has discretion.

  • The court will enforce a trust not a power.

  • The objects of a fixed trust must be certain, they may be more loosly described for a power

• Examples of Powers

  • Re Gulbenkian [1970] – to use the estate for the maintenance or personal support of a listed group

  • Re Hay’ Settelment Trust [1982] - here there is a gift over in default, that typically indicate a power rather than a trust.

• Classification of Trusts

  • An express trust is usually deliberately set up by the settlor, though it may be deduced from their informal language or conduct.

    • A private express trust is for the benefit of individual persons.

    • A charitable express trust is for public purposes, not for private individuals as such.

  • Other trusts may be implied by law, in some cases despite the intentions of the parties.

    • Resulting trusts occur when the...

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