Constitution Notes

Constitution

There are two ways S may set up a trust:

1. declare himself trustee, or

2. appoint someone else to act as trustee.

For (i), S need only effectively declare his intention to create a trust.

For (ii), S must declare the trust AND transfer his interest in the trust property to the prospective trustee – this second step is constitution of the trust.

Note that, in a completely constituted trust, the beneficiary can enforce the trust regardless of whether the beneficiary is a volunteer or not (Paul v Paul); the principle of ‘equity will not assist a volunteer’ does not apply once the trust is fully constituted.

1. Transfer of (legal) title

   1. The rules for transfer differ with the type of proprietary interests:

      1. For tangible personal property, physical delivery is sufficient (or deed of gift)

         1. Where there is a contract for the sale of specific or ascertained goods, the property in them transferred to the buyer at such time as the parties to the contract intend it to be transferred (s17 Sale of Goods Act 1979)

            1. ‘Sale’ is defined by s2(1) SGA as “a contract by which the seller transfers or agrees to transfer the property goods to the buyer for a money consideration”.

      2. For land, a deed is required ( s52(1) LPA 1925)

         1. For registered land, then the transferee must be registered as the new proprietor (s27 LRA 2002)

      3. For shares, either (i) completion of a share transfer form and registration by the company OR (ii) electronically (s1 Stock Transfer Act 1963 and ss770-772 Companies Act 2006)

      4. For debts and other choses in action, writing followed by notice to the debtor is required (s136 LPA 1925).

      5. The payee of a cheque can transfer his right to payment by endorsing the cheque (signing its back and writing the name of the new payee, Jones v Lock).

      6. Where S’s interest in the property is equitable, then its transfer must be made in writing and signed by the transferor (s53(1)(c) LPA 1925).

      7. A person can hold their entitlement under a trust on trust (this is called a sub-trust, and can be created: by a declaration of sub-trust; OR if the principle under which the constructive trust arose required there to be a sub-trust)

         1. Note that the trustees might instead hold the covenant on trust for Mark (i.e. the rights under the covenant, see below)

2. Imperfect transfer of title

   1. While doing so might better give effect to S’s intentions, a failed outright transfer will not be interpreted as a self-declaration of trust simply to ensure that a gift is effective an imperfect gift is NOT an effective declaration of trust (Milroy v Lord).

      1. (NB: ‘imperfect gift’ = ‘ineffective outright transfer’: where S tries but fails to transfer his property)

      2. Turner LJ in Milroy v Lord set out the 3 ways to pass the benefit of property to someone else:

         1. Legal transfer of title to the recipient (gift)

         2. Transfer of title to T for B (trust)

         3. Self-declaration of trust for B (trust)

      3. Turner LJ: “[The case law establishes that] if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of these modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust.”

         1. Maxim: ‘equity will not perfect an imperfect gift’. Trusts should not be used to save gifts from being defeated. ‘Equity will not assist a volunteer’.

      4. Webb: This approach seems overly strict, especially when one considers that S likely does not have any particular mode in mind, but rather just an intention to benefit B.

         1. (Given the rule in Saunders v Vautier this analysis makes sense.)

      5. BUT: The UKPC avoided this harsh rule in Choithram v Pagarani by holding that, in the context, S’s announcement could be interpreted as showing an intention to make a trust rather than a gift, and since S himself was one of the Ts, no transfer of title was needed to constitute the trust, because title to the trust property was already vested in one of the Ts – the trust property need only be vested in one of the trustees to constitute the trust. – interpreted S’s words as a self-declaration (benevolently construing it as such)

         1. (Thus, Choithram is not actually an exception to the rule that equity will not perfect imperfect gifts.)

         2. Re Ralli went even further holding that as long as T receives legal title to the property, the trust will be constituted, regardless of the reason why title is vested in T.

            1. On the facts, H was entitled to T’s property under T’s will. By her marriage settlement, H covenanted to settle property subsequently acquired in favour of I (her sister’s) children. H later died, leaving I’s husband as the sole surviving trustee both of T’s will and H’s marriage settlement. The court held that the property was held upon the trusts of the marriage settlement, rather than on trust for those interested under H’s will, because the trust was properly constituted.

            2. Webb: S covenanted to transfer to T her equitable interest under the second trust, but what T ended up receiving was the legal title to the trust property unclear if the trust was ever properly constituted.

      6. One must note the earlier case of Re Brooks, where S had covenanted to transfer to Ts all interests he has and would receive under his mother’s trust. Both trusts had the same Ts. But when S purported to create the trust, he had no interest in the money S was purporting to assign a mere expectancy, and so the trust was not created.

         1. Are Re Brooks and Re Ralli inconsistent?

            1. Re Ralli trust. Re Brooks no trust.

            2. In both cases, both the first and second trust had the same Ts, so the trust property coincidentally came to be vested in T.

            3. Distinguish the cases:

               1. Re Brooks concerned a mere expectancy; the purported settlor did not yet have any interest in property he would later receive under his mother’s trust.

               2. Re Ralli concerned an ...

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