A more recent version of these Formalities notes – written by Cambridge/Bpp/College Of Law students – is available here.
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Three methods of giving the benefit of property to someone: all mentioned in Milroy v Lord
1. Outright gift: transfer of legal and equitable
2. Transfer on trust
3. Self-declaration of trust Declarations in generalIf a person wants to create a trust on death - he must comply with the Wills Act 1837 s9 o
All testamentary dispositions must be in writing, signed by testator in presence of 2 witnesses present at the same time who must attest their witnessingLifetime (inter vivos) trusts may be declared formally (or orally/by conduct) - Paul v Constance unless there is a specific requirement for them to be in writing - Subsections 53(1)(b) and (c) of the Law of Property Act 1925 - require writing for certain trust dealings
Declarations of a trust of land S 53 (1)(b) Law of Property Act 1925: ' A declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will'Failure to comply renders trust unenforceable (not void)If the settlor orally declared a trust of land and then later evidenced it in writing - date of declaration is the date of the original oral declarationS53(1)(b) applies to express trusts onlys53(2) LPA 1925 provides that the requirements of s53(1) don't apply to implied, resulting or constructive trusts - exempt from the need for writing - Hodgson v Marks
Dispositions of subsisting equitable interests in any propertySection 53(1)(c) LPA 1925- formalities for the disposition of a subsisting (or pre-existing) equitable interest, whether in land or pure personaltySubsisting in the sense that legal/equitable ownership have been separated'a disposition of an equitable interest subsisting at the time of the disposition must be in writing, signed by the person disposing of the same or by his agent lawfully authorised in writing or by will' - failure to comply makes it void 1
[FORMALITIES]'Disposition' is a very wide term - can include sale, gift, assignment and a declaration of trust
4 types from Timpson's Executors v Yerbury :
1. Assign directly to 3rd party
2. Direct T to hold for 3rd party
3. Sell it - 'contract for valuable consideration'
4. Declare a sub-trust Direction to trustees to hold on trust for another
1. Grey v IRC (1960) : (See full description of case in previous notes/manual)Settlor, Mr Hunter wanted to avoid stamp duty in creating settlements for his grandchildrenStep 1: 6 settlements createdStep 2: Mr H transferred 18,000 shares to trustees to hold as nominees for Mr HStep 3: Mr H orally and irrevocably directed the trustees to hold the shares according to the terms of the six nominal settlements - intention was that the shares should be held on trust for Mr H's grandchildrenStep 4: All this was confirmed by deed executed by Mr Hunter and the trustees
Mr H argued that oral direction to hold shares for grandchildren was not a 'disposition' - so s53(1)(c) didn't apply (no need for signed writing)
HL disagreed: attempted disposition of a subsisting equitable interest: void for failure to comply with s53(1)(c)
Key point - regard the trustees, TT as the apex of a triangle holding shares for H down below, who called up to TT to direct them to hold instead for GG, so that H was responsible for shuttling across his equitable interest to GG - disposing of his subsisting equitable interest
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