Here you will find summarised trust law notes for the entire Monash University topic.
The summary notes are an excellent exam help, with steps to work through all topics. They contain relevant precedent and case citations for that HD answer, along with brief summaries of every case. They are short enough for use in an exam, but detailed enough that you will never miss a point....
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Completely and Incompletely Constituted Trusts
For a trust to be valid, trust property must be vested in the trustee (it must be assignable) – This is the question of whether the trust has been completely constituted
In trusts by declaration there is typically no issue of CC Paul v Constance
Usually arises in relation to trusts by transfer
The rules governing gifts will determine whether the trust property has vested in the trustee. It will be sufficient if the property has passed to the trustee in equity
If the trust is not completely constituted, it will fail. A failed gift will not be interpreted as a declaration of trust
A trust cannot be complete until the trustee has title to the relevant property and can hold it subject to the trust which has been declared
There are four main exceptions to the rule that incompletely constituted trusts are unenforceable
An imperfect transfer may be enforceable where the transferee can show a representation by the transferor that was intended to be relied on and was relied on to the transferee’s detriment
Under the rule in Strong v Bird, if a testator intends to make a gift but does not make a complete gift before their death and appoints the donee his executor, then equity will assist the done
Gifts in contemplation of death
An incompletely constituted trust can be enforced pursuant to a promise to create a trust to a person who has provided consideration
Complete or Incomplete?
If a trust is properly constituted:
Property in the asset has passed. If there is a completed legal assignment, the transferee takes title. If the assignment is complete in equity, the assignment will be enforced against the transferor in equity.
This property can now form the subject matter of a trust, but remember to check whether s 53 (1) applies/has been complied with.
If a trust is not constituted
There is no trust – title remains with settlors
However constitution is not a problem when there is consideration
If I give you consideration for transferring property to me to hold onto trust and something goes wrong in the legal transfer mechanism, it won't matter as the receipt of considerations will bind the assignor's conscience. Once they have it in their hands, equity requires done what ought to be done and will require the assignor as holding it on constructive trust
Assignments of legal property for value
Equitable title arises
Assignor will hold on CT for assignee
Voluntary assignments of legal property
Has the property been assigned at law? (if yes, trust constituted)
Torrens Land
Registration TLA s 40 signed by both transferee and transferor, lodged with the DCT
If no registration, apply Corin v Patton
General Law Land
Assigned by deed PLA 52(1)
Similar to delivery – when a deed is executed, all titel moves
If not executed, the land remains with the assignor
Choses in possession
Delivery with intention of transferring legal ownership OR deed of assignment
Shares sold off-market
Registration in books of company of an instrument in the prescribed form Corporations Act 2001 (Cth) s 1071 B
(Instrument of transfer needs to be signed by both transferee and transferor and lodged together with share certificate).
Cheques
To effectuate assignment, need to endorse and deliver Jones v Lock
Cheques made payable to person by endorsement and delivery Cheques Act 1986 (Cth) s 40
Other bills of exchange:
Endorsement and delivery Bills of Exchange Act 1909 (Cth) ss 36 (3), 95
Life insurance policy
Memorandum of Transfer endorsed on the policy, signed by transferee and transferor, and registered by the policy issuer Life Insurance Act 1995 (Cth) s 200
Entire choses in action (only applies to absolute assignment)
Assignment in law by s 134 PLA (only use for legal, as equitable is simpler and 134 is a default provision)
Absolute assignment
In writing
Signed by the assignor
Express written notice given to the debtor (by either the assignor of the assignee holding the document of transfer – Anning)
If not satisfied, apply Corin v Patton to establish whether the...
Buy the full version of these notes or essay plans and more in our Trusts Notes.
Here you will find summarised trust law notes for the entire Monash University topic.
The summary notes are an excellent exam help, with steps to work through all topics. They contain relevant precedent and case citations for that HD answer, along with brief summaries of every case. They are short enough for use in an exam, but detailed enough that you will never miss a point....
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