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Non Express Resulting Trusts Notes

Law Notes > Trusts Notes

This is an extract of our Non Express Resulting Trusts document, which we sell as part of our Trusts Notes collection written by the top tier of Griffith University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Trusts Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:










NON--EXPRESS--
RESULTING
TRUSTS


















TRUSTS | PAGE 60 RESULTING TRUSTS


... giving effect to the common intention of the parties ...
"The passing of ownership carries with it both legal and beneficial rights
unless there is something in the circumstances which should lead equity to
impose a trust"
Duggan v Governor of Full Sutton Prison
[2004] 1 WLR 1010, [31] (Chadwick LJ)
*
*
* Occur when there is an intention to create an express trust but the settlor
has not arried out the requisite acts for the valid enforcement of such a
trust
A default trust where the beneficial entitlement returns to the settlor as
the consequence of either
o A failed express trust
o A presumed express trust
A trust arising when the settlor disposes of property on terms that do not
exhaust the entire beneficial interest

Types of Resulting Trust:
* Automatic resulting trust
o Where a settlor has created an express trust but the beneficial
interest in the property has not been completely disposed of. The
settlor retains some, or all, of the beneficial title * Presumed resulting trust
o Where a person purchases/transfers property in/into the name of
another (or herself and another) and the other person makes no
contribution (or less than is reflected in legal title), it is presumed
the purchaser did not intend the other person to take beneficially * Quist close trusts
o Where one creditor claims priority over other unsecured creditors
(the co--existence of a loan and a trust)












TRUSTS | PAGE 61 AUTOMATIC RESULTING TRUSTS

Failed Trust:
* Void for uncertainty
o Certainty of intention
o Certainty of subject matter
o Certainty of objects
o (Some other type of relationship?) * Does not satisfy the formalities ("everything necessary")
o At law (by following the requisite formalities for inter vivos or
testamentary trusts)
SS? inter vivos * Property Law Act 1974 (Qld) s 11 * Secretary of the Department of Social Security v James
SS? testamentary trusts * Succession Act 1981 (Qld) s 10 * Property Law Act 1974 (Qld) s 11
o In equity
SS? Milroy v Lord
SS? Property Law Act 1974 (Qld) s 200(1) * The perpetuity period is up
o 21 years from date of death of last survivor
o Property Law Act 1974 (Qld) s 209(1) * It's illegal (contrary to public policy or statute) * The intended beneficiary is dead

No final vesting clause:
* Failure to dispose of the whole beneficial interest
o Transfers property to another without specifying the beneficiary
SS? Still intends to transfer the beneficial interest * Specific purpose that fails
o Lending money to buy a specific painting that is sold to another * Property in excess of specified purpose (subject to exceptions)
o Giving money for a specific purpose and more money is collected
than necessary









TRUSTS | PAGE 62

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