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Law Notes Property, Equity and Trusts 1 Notes

Formal Requirements For Trusts Notes

Updated Formal Requirements For Trusts Notes

Property, Equity and Trusts 1 Notes

Property, Equity and Trusts 1

Approximately 320 pages

The old Property, Equity & Trusts subject at UNSW. Dealt primarily with old system. Contents include detailed case notes (and super summaries ideal for use in an open book exam) and article summaries on the following classes:
Class 1&2 – The Concept of Property
Class 3&4 - Goods
Class 5&6 - Possession of Land
Class 7 - Limitation of Actions
Class 8 - The Doctrine of Tenure and Estates; Determinable and Conditional and Future Interests, The Doctrine of Waste, Fragmentation of legal/beneficial...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Property, Equity and Trusts 1 Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Formal Requirements for Trusts

Wratten v Hunter (1978) 2 NSWLR 367

Facts: Ambrose transferred land to his son, Bertram, shortly before dying. At the funeral B said to his brothers and sisters ‘I promise to live in the house and care for the home and property for us all’ while holding the family bible. The plaintiffs, his sister and brother-in-law, claimed an interest in the property. The court had to consider s23C(1)(b) of the Conveyancing Act

Needham J:

  • The plaintiffs submitted that the principle that the Statute of Frauds cannot be used as an instrument of fraud, applies equally where an owner of land (obtained without reference to any beneficial interest in another) voluntarily declares a trust and therefore he cannot rely on the statute to defeat the claim of the person who he made the claim in favour of.

  • The principle is set out in Rouchefoucauld v Boustead – ‘...the Statute of Frauds does not prevent the proof of a fraud, and that is a fraud on the part of a person to whom land is conveyted as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself’.

    • His honour added this applies to where land is conveyed to someone as a mortgagee by absolute conveyance, and he tries to use the absolute conveyance deny the equity of redemption of the mortgagor

  • Resolving the authorities, and ultimately agreeing with Meagher, Gummow & Lehane that the principle in cases like Rouchefoucauld v Boustead does not go so far as to waive the Conveyancing Act s23C(1)(b) where one, having acquired land independently, later ineffectively declares themselves as a trustee

  • Persons with equitable interests in land can assign their interests in a number of ways (Comptroller of Stamps v Howard-Smith (HCA):

  1. An expression or indication of intention on the part of the donor that he shall hold the equitable interest vested in him on trust for the persons intended to benefit.

    1. In this case he retains the equitable interest but constitutes a himself a trustee and imposes upon himself an obligation to hold it for the benefit of the donees

  2. A sufficient expression of immediate intention to make over to persons intended to benefit the equitable interested vested in the donor

    1. Here neither notice nor communication is required; though notice can be important to bind the trustee it isn’t a condition precedent to the operation of the expression of intention to be an assignment

    2. What is necessary is an expression of intention to set over teh equitable interest and communication to someone who doesn’t receive the communication in confidence or in the capacity as an agent for the donor

  3. The intending donor for whom property is held on trust can give to his trustee a direction requiring him to hold the property on trust for the intended donee

  • Further, beneficiaries that are ‘sui juris’ and entitled to equitable interests corresponding to full legal interests in property vested in their trustee can require the transfer of legal estates or interests – and he may then transfer that legal interest upon trust for others.

    • But here he simply directs the existing trustee to hold on trust for new beneficiaries and cannot impose, without the trustee’s consent, new duties upon the trustee

  • Difficulties have arose out of this statute, such as in Adamson v Hayes (HCA)

    • Facts: In Dec ’70 the appellant and respondents were registered holders of mineral claims relating to mineral deposits under the Mining Act. Some of them were registered in A and his relatives name and others in H’s names – but all were held by them as trustees for beneficiaries who varied in relation to each claim. In Dec ’80 a pooling agreement was reached between the two syndicates for a ‘partnership’ to divide the property in a 56/44 ratio between the appellants/respondents with an option that the respondents can acquire 50% on certain terms. They exercised the option but the appellants refused, relying on the fact that since the claims were ‘land’ they were void since the oral agreement wasn’t enforceable under the Statute of Frauds

    • Held: The Mineral claims were interests in land since s7 of the Property Law Act which included ‘any strata or seam of minerals...’ as Land overrode s273 of the Mining Act that interests in mines should be chattels. But s273 prevented appellants relying on the Statute of Frauds because s273 said that mining tenements weren’t to be regarded as lands for the purpose of the statute

    • Held (Menzies, Stephen and Gibbs JJ):

      • The agreements came under s34(1)(b) and the effect of the agreement was simply to substitute new trusts for the old ones

    • Held (Stephen and Walsh JJ): The agreement could be characterised as a disposition of equitable interests already in existence and thus came within s34(1)(a)

      • They rejected that s34(1)(a) only applied to the creation of legal interests

    • Held (Stephen J): Even if the pooling agreement did amount to a declaration of trust in relation to each claim, to a disposition of equitable interests within the ambit of s34(1)(c)

    • Held (Gibbs J): There was no disposition of a ‘subsisting legal interest’ since the equitable interests disposed of didn’t exist until the agreement created them and hence they weren’t ‘subsisting’

  • In the above case Gibbs J in obiter rejected the suggestion that that s34(1)(c) only applied to equitable interests in land

    • But this is qualified – in Vandervell v Inland Revenue Commissioners the House of Lords held that even though the Statute of Frauds applied to dispositions of equitable interests in things other than land – it didn’t apply to transactions enabling a person to receive both legal and equitable interests (in that case – shares)

Some Questions left open

  • Does s 53(1)(a) (writing and signature required) only apply to legal interests in land?

    • Menzies J says yes

      • If he is right, how does this provision interact with s 52 that requires conveyances/dispositions of legal interests to be made by deed

    • Gibbs,...

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