How to Make the Best Law Lecture Notes (Practical Example)

Below you will find a practical example of how to make the best law lecture notes for essay writing and exam revision. These law lecture notes were prepared by a student who went on to achieve a first class law degree at the top UK university. Instead of giving you hypotheticals, we have decided to simply show you a practical example of how to write the best law lecture notes for all of your law degree modules.

As you will see from the above example of law lecture notes, it is meant to be a working copy that is meant to assist you to understand and apply the law to exam question scenarios. It is perfectly fine to have typos and abbreviations or even mnemonics. These notes are FOR YOU. So do whatever helps you!

TRUSTS LECTURE, term 1

week 3. Second half of lecture.

Volunteers refers to benficiary who gets something for nothing
In case: nephew got the share..
Back to story from first part of lecyture:
So far – true owner of car: Gma,the mum now ihe trustee, gma remains equitable owner
Gma wants owner to take car as beneficiary
Car changed its nature in gmas hands
Gmad holds in equity
Gma wants to pass equitable title to granddaughter – Stephanie
It terms of constituiot nothing needs to happen; settler= granma. Trustee= mum
Resulting trust beneficiary = gma. Wants to get rid of equitable interest- give to granddaughter
SO SECOND PART OF LECTURE – TECHNICAL WORD IS FORMALITIES
FORMALITIES ARE STATUTORY PROVISIONS WHICH ARE DESIGNED T SOLVE THE Q OF PROOF
Certain types of property for which proof is not necessary e.g. chattels. No outright proof needed
Proof necessary in protecting the correct beneficial owner of an equitable asset. Also in letting the inland revenue know who is to be charged
Formalities –sstattuorty formal rules about how to set about creating the necessary proof
2 circumstances call for proof: 1) trust over land – required that the trust must be written down in writing. Cannot be orally done – s53 1B property law act 1925. Land is special. Orally it is valid but to be enforceable it must be in writing. Can take place at a later point in time. This shows that the trsut was valid from the beginning; the writing is merely
The second circumstance where equity says proof must be formally complied with, is where an equitable interest is being given away
So gma – equitable interest in car is hidden from all the world. So it is possible for someone else to claim, if there was no requirement of proof, that the gma had given them the use of the car. She had made them the equitable owner of the car. no proof.
g. a friend could come along and say the gma gave the car
But section 53 1C law of prop act: says: the equitable owener who disposes themselves of the equitable interest entirely can only validly effect that disposition .,can only say they have given it away through WRITING.
No one can claim it without being in writing
In land – with trust can proof it later.
Equity – to take it away, writing must be created. It is at the point of writing that it is taken away from you.
Dispossession of equitable interest not possible before writing done
The above is section 53 1C
The gap fillers: resulting trust, implied trust ETC, these are retrospectively declared – s53 subsec 2 : imply resulting constructive trust which are in operation, never require writing.
So law makes an exception. = never require writing
1 b and 1 c: land u can do it later; equitable interest never disposed of until in It is the writing that makes it disposable.
CASES:
A man with 18000 shares, bought shares.. he is the beneficial owner of shares. They are bought in a nominee’s name. He is the equitable owner.
He sets out 6 trusts, one for each of his grandchildren.
On 18th feb he tells his trustee orally to hold 3000 shares each for each of his trust funds.
S53 1 c: not disposed of it. Disposition of equitable intrest must be in writing
Inland revenue, 25th march, he writes to his nominees to divde up the 18000 into 3000 shares to each of his trusts
So in writing, now he has disposed of his equitable.. so complied with 53 1 c.
Change facts: this guy orally makes himself trustee ..he is beneficial owner of ahres and makes himself trustee for the beficial interest of his grandchildren
He is managing – active role. So he is NOT DISPOSING OF ENTIRE INTEREST – retained management and control
So sub-trust: technically can be argued that no writing is required.
If you declare yourself to be trustee over equitable interet, with management function then not disposing of equitable interest – u retain interest so DOES NOT NEED TO BE WRITING
This is first exception
Second:
This guy, bought shares, hiding from world – nominee holds title. Split at time of purchase
Facts changed – he wants to give the shares absolutely as chattels to grandchildren. So wishing to combine legal and eq to hands of children, outright gift combing legal and eq title
Saying to trustee – transfer legal title. Intention is for children to enjoy legal title and dividends – equitable title.
Intention to pass legal title.. and for all shares to pass to kids
In this situation; law says: no possibility of fraud of equitable title – no writing is required. Since the policy of the legislation is not being intravened, no requiremtn to transact in writing. As long as his intention is that equitable fruits follows legal title to kids
CASE = = = VANDERVELL NO. 1. Intend to transfer legal and equitable title to same destination, the policy not under threat so no writing is requireds
That is the second exception
VANDERVELL NUMBER 1; - mr v held shares under proxy. He owned a private limited company – absolutely. But shares were registered in nominees..(as above)
he wanted to . royal colllege of surgeons
he passed outright his shares in his private company to the college. Told nominee to pass legal title – beneficial title passed too. So no possibility of fraud –entire intention so not needed to be in writing.
BUT he didn’t want to give it away forever. He created an option – a contract. (wanted to save for family)/, contract which gives him first right. Paid consideration of 500£
He paid 500 – so nominees will have right to buy back shares. So back to nominee company. Contract makes sure shares not lost forever.
So proofing rules.. option is also property in the law. Legal title in option was held by trustees.. who owns the beneficial title? Mr V. Inland rev = happs. When mr v gave shares to college – receiving dividends, it pays no taxes. Inland revenue –wants money. Cant chase charity but wants money. So chases mr V- - - saying to mr v: u have property interest on a resulting trust – beneficial ownership[ not given away
Income from shares are a propery intrest – he has interest in these. So he needs to pay.
...
YOU HAVE TO GIVE AWAY BEIFICIAL OWNERSHIP IN AN OPTION IN WRITING.. MR V DID NOT REALIZE HE OWNED IT
As a result of V number 1... lord denning: v number 2:
Lord denning saying: man dies – family having to pay taxes.
Vandervell – discovers he has property. He has beneficial interest in option. He has no money. Takes money from grankids existing settlement to buy back the shares
But – confused: wrote letter to inland – they don’t need to pay because kids = minor.
So inland revenue = mad.
Did not get rid of option in writing, so still his. Change nature of property back to shares so still him.
So dividends belong to mr v and so he must pay tax – belongs to him.
He dies.
His estate sues his grandchildren. Goes to CA: denning - --- see handout fact findings found by him
Finds – since option was held on rsulting trust, killing off option of resulting trust ... see handout
53 2 purposely leaves out termination.. denning says this. Creation and operation.. denning reads gap.. must surely including termination.

Trusts lecture term 1

week 4 –Secret trusts

3 other requirements for setting up a valid trust: we will study 2 today:
To set up a valid express trust: 3 certainties: certainty of intention; certainty of subject; certainty of object
In studying the formalities requirement for testamentary trust.. secret trust
LPA governs lifetime gifts
Historical anomaly in the law ..exception: secret and half secret trusts
Reason for existence of this trust
Why is it that, given the blanket provisions of the Wills Act, you can give gifts without it being formal?
3 certainties. First we will examine intention:
Examine whether this idea of specific intention is still the same as how it has been represented to us throughout the course so far
Also, certainty of subject matter – certainty regarding the property/gift being disposed of..this we’ll be learning ourselves (not taught in this lecture/course)
Have to get gift in trustees hand... sections 53 1 b (land) and 1c (the disposition of an equitable interest)
Section 9 of the wills act – the formality requirement for death time wills
The process of making the will is meant to concentrate your mind. .. Serious exercise helps with 2 ideas: reflects how you are to dispose of gift – looking at seriousness of intention (general or specific). Also, translating property into action of writing the seriousness down – who you wish to give to, what etc.
So, prior to making will, have to find 2 persons to witness
They have to attest that you are of sound mind..BANKS AND GOODFELLOW – must be of sound mind when writing will.
Section 9 therefore has a very robust introduction. No will shall be valid, no testamentary gift shall be passed unless in writing signed by testator or someone. If you are so ill that you can’t sign, you can have a solicitor/agent write it
In the testators presence
It appears the testator’s signature gives effect to the will
The signature is made by testator in presence of 2 witnesses, or where he cannot write, you must acknowledge i.e. nod your assent in the presence of 2 witnesses.
The 2 witnesses must be present at the same time so they can corroborate evidence/recall of the consent
The effect of section 9. The wording: NO will shall be valid
NOT TRUE, common law!
Secret trust and fully secret trust – intended to mask the beneficiary of a death time gift. Effect is to make non apparent who the settler has disposed the death time gift to
The historical context for these trusts: stems from supporting illegitimate children
Historical record shows that as a result of the church redefining marriage..marriage act 1753 ..number of recorded bastards rose
Not fulfilling writing provisions of wills act because it is a public document (didn’t want everyone to know about their illegitimate children)
Where disposition occurs it must be proved.
Will is a public document, u have to find the last will.
When married and divorced automatically will is invalid
Illegitimate children you wish to support – not a good idea to say who you have close rships with so secret trust
The fully secret trust is one where if you read the will, you will not be able to tell that there is a trust hidden behind it
Fully secret trust, the man has the right to inform the child, she is a trustee
Mans communication to child as to their trustee status can occur at any point before they (man) die
Communication in a fully secret trust can happen at any time before the testator dies
On the face of the will you appear to give absolutely to child but you hold beneficial trust until you die. You can tell child until you die, who the beneficiaries are
The effect of fully secret trust is to aggregate requirement in section 9 of intention of who is to benefit. Not making clear on the face of the will who is to benefit
Don’t even have to inform child explicitly who is to take. Only have to place within the access of the child, information about where to find out about who the beneficiary is
So as long as this is done, the child can be a secret trustee
Legal status of secret trust:
Because you have to make this trust while you are alive, it appears you intend this trust.. but it is only constituted once you die. She is trustee only when you die.
So juristic nature of fully secret trust is CONSTRUCTIVE in nature
Even if child agreed to be trustee she is not managing or control anything, it is constituted upon death
Lawyers started to take over so a variation developed: the half secret trust
:
Man in making will “I man give my most valuable asset to child upon trust”. Everyone knows she holds a trustee. But not known who she holds it for so still masking beneficiary
So this is a way of half respecting the wills act.. it is made clear that the child is not taking absolutely for herself. In fully secret trust it shows she is taking it all for herself
So this goes half way in relation to the wills act- write the word ‘trust’ into the will itself. The communication process for ½ secret trust:
You have to tell the child who they are holding for before or at the same time as you made the will
Fully and ½ secret trusts must give them access to details of beneficiaries before they agree to be trustee
BLACKWELL AND BLACKWELL- ½ secret trust: 1929 –courts had sat in chancery for a very long time at this point. Attempt made to q why it is that the ½ secret trust differs to the fully secret trust
Said: the reason you would have to communicate the beneficiaries before or at the time of writing is because otherwise you would be going against the requirement of the wills act. Must tell her that she is a trustee in the will, respecting the requirement of the wills act. so one judge had half a mind turned to wills act.
No stigma now about illegitimate children and wanting to keep things hidden so -Why do they still exist:
Justifying the trust –
We give legal force to secret and ½ secret trust – we want to prevent trustee from being fraudulent.. the trustee would take for themselves. Equity would not allow instrument to be used for fraud.. fraud for the trustee, absence of formality to take property for themselves
This is attackable - 1) so far we have realized where property reaches a barrier, the normal route is for it to result back. So argument – why move it forward to secret beneficiary, in the face of the formalities requirements. If child is fraudulent, it should result back.
2) preventing fraud amongst beneficiary – if they don’t get intended gift. Valiant attempt – hope rising beyond experience because equity does not assist a volunteer
Why should it assist a beneficiary? This attack is a valiant attempt
So left with idea that these trusts are driven by policy – historical context. Looking at judges trying to facilitate the settlers intention to give secretly
They understand the drive and provide for illegitimate children
Facilitating a real desire / intention to have property move forward –policy
On the face of the will ..justification of possibility of fraud does not gain momentum
Artificially .. property moves forward despite formalities
Results back – that’s the correct operation of law
Said by someone: Operate outside wills act/outside the will.. property operates outside wills act. Reese.. 1979 case. . 50 years after Blackwell approved idea that in the modern world would accept concept of half secret and secret trust... they operate outside will
Trust mentioned in will – disposition to work to the terms of the will.. untrue in half secret trust – still don’t know who takes.. so cant say half secret trust operates outside of will. Section 9 of wills act requires us to tell who receives ..
Something which operates outside the will does not necessarily operate outside the wills act. the word trust is in the will..
Facilitating intentions in modern world but intentions have changed
The standard of proof in the secret and ½ secret trust is the balance of probabilities
Test of whether or not the law will enforce secret trust –settlers intention
Validity of these trusts – prevent unconscionable ; deterrent to prevent trustees from action
One of the certainties – CERTAINTY OF INTENTION – historically –intention to give specifically upon trust.. no trustee wishes to be burdened.
Checking when a trust was declared
Look at it from the modern context of upholding a secret trust.
If the settler is dead are the courts more predisposed to passing property? No longer careful to check a trust was intended:
Case –fully secret trust OTTAWAY V NORMAN
The settler gave to the recipient absolutely but with an oral direction that they, upon their death, set up a trust for a different beneficiary. Will set up a will and give it to the ultimate beneficiary
Conservative man, housewife = mistress. He wanted to leave a roof over her head when he dies. In the presence of her son, “when i die, Julia will get the house and make a will to make sure son gets it.”
Son suggested: Why not give it to housekeeper and remainder to me upon death?
So he suggested an express trust – Julia in life, son in remainder.
The man ignored the son
He died; she executed will giving property to son
She fell out with the son. Gave the property to a neighbour in her will
Court: son pleads secret trust. All of his suggestions about an express trust = ignored
Included chattel; house; money in case
Between neighbour and son.. reason—test : ........
Turned it to a Q of proof – son =credible and not fraudulent. Intention and communication of the intention and acceptance by lady of oral direction, safely can say it is a secret trust benefitting the son. On the basis of credibility, sons account is credible
Q of intention. When decision was made was judge facilitating a specific trust/ or was he facilitating a general intention .. that the recipient had to ultimately be a trustee?
This man ignored ALL suggestions of express trust..
Is there a movement towards giving property because someone is dead? Guessing what they would have liked?
Snowden case
All her life her brother took care of lady. Everything managed by father and then her brother. She became incompetent. Thought she should make a will, she started but didn’t carry on making will, saying “give it to bert” (brother)
Bert died. Shortly after, she died.
Berts will gave everything to his son and hers gave everything to bert
Son – everything went to son. Went to court: what to do with aunts property? Borrowed from MCGRONAN AND CHRISTIAN.
Test: moral obligation? Law has no place OR did she intend to bind her brother?
No secret trust upon trust, did the settler intend a moral obligation only? Or full weight of law?
Lot of faith in secret trustees?
GOLD HILL..paradise motors
GOLD HILL : not a secret trust – trust property not in existence because it is a life insurance policy. settler has to die first for it to be property.
Nominee told: when i die, make sure the fruits of the insurance policy go to carol and the kids.. carol was his mistress
Judges passed property forward- secret trust – sympathetic to carol. The man’s wife had everything in the estate, only life policy left for carol.
What did settler really want? Hard to find intention to set up a trust? Were new additions to carols family to benefit??

ABOVE WAS CERTAINTY OF INTENTION, NOW...

CERTAINTY OF SUBJECT MATTER

Seminar – wendy saying to trustee- exercise option for trust.. Ambiguous – possibility of more than one trust. Idea is that everyone uses lose language
Say father dies first, leaving property to wife. The remaining parent may feel need to deprive themselves to maintain property which she believes was to be given to children.
This is to impose maintenance of property- sacrifice –she may have to deprive herself in order that it is maintained for children
So cruel kindness..
EXAMPLE:
I the father leave to the mother, my share of the family home in the fullest confidence that she will use and maintain it for the benefit of the children
Should our children pre-decease us, he gives the direction that the home should be given to a foundation for the blind.
3 certainties – intention, subject – the persons to whom u wish property to go, and object.
If any one of these is unclear, the fact that there is a trust at all would be under challenge.. CASE -MOUSURRI (check this)
First of certainties – INTENTION
Paul and constance –couple –moved in together; bank account in his name only.. proceeds from industrial action went into bank account.
they would use it for themselves; said to her over again “this is as much yours as mine”. The compensation in the account ..
his legal wife got estate when he died, she wanted the account that was shared by husband and mistress
denning – NOOOOOO. Mistress wins!
sympathy taken place. Subject matter? proportions? Declaration? What are the terms of this trust?
There WAS A TRUST according to denning
Compare to JONES AND LUCK- more stringent. Involved man going to London for business, come back with a negotiable instrument – a cheque. Has to be negotiated before u get it. Nanny – says to him “u have not brought a present to the baby”. Gives cheque, says ‘this is my present to baby’. Obviously takes it back because it’s only a baby. He dies. Cheque back to bank account, negotiable instrument given to baby so courts will not let him be a trustee...
Negotiable instrument never passed
Words of conduct – case of OTTOMan (above)
Was a trust ever declared? Ignored son? Q never asked by judge..moral obligation or full weight of law? Never ask this Q.
Snowden –WRITTEN document. Give it to bert. Was a trust intended? Are they preparatory words/ show an intention to bind bert with the full weight of the law as trustee?
Court – moral promise. She saw bert as her second self.
Certainty of subject matter..........
Must concentrate on words that are just conceptual. Must be possible to ascertain what the property is. Reasonable word is thought to be sufficiently certain to be worked out by courts.
If all property is the same and there is no possibility of telling which of the prop is to go where, the gift will fail
must be allocated to pass title. –physically identify it
if percentage, no problem
Homogenous trust prop – intangible e.g. shares – all preferential and same. Its the physical ones where there is trouble. Physical property has to be allocated.

TRUSTS LECTURE term 1

WEEK 5

Today certainty of object
Reference for H & M – Jill – disregard (in further reading)
Certainty of object.
Last week – you have a valid express trust – 3 requirememnts:
Intention;
Cases – gift and death
In order to gift property the property itself must be certain (certainty of subject matter)
Today – how certain do the gifts have to be?
1970 CASE – MC.. .lord wilberfocce
He went for a practical solution to the problem of ifinding the objects,, to find the true settlers intention
At some point, when cases sufficiently demanding on facts, judges end up facilitating the general intention to give
So certainty of object 0-lord Wilberforce
Where possible, where practical, if necessary, the courts will help redistribute the objects that the settler had in mind
Facilitate what the settler really would have wanted
If someone receives property in eh capacity of trustee
And settler intednds for beneficiaries other than herself
It is tehn her duty to give the trustee some means of ascertaining who the beneficial class is/is to be
Reason for this, property must reside in a pair of safe hands. MORRIS AND BISHOP OF DURHUM the owner cannot dispose of the benefit of the property in favour of nobody
.. 99.9% beneficiary is human
The type of express trust – fixed express trust or discretionary
Where the destination of your property is of two types- above
Where it is fixed, each beneficiary already has a vested interest
In discretionary trust – the concept of the pool of beneficiaries has to be clear.
The class has got an expectation that they will be considered for a gift but no entitlement to gift. Duty to consider, no duty to distribute
Trust is a mandatory promise by trustee (trustee cannot take for herself,
In a fixed trust, the trustee must have the means of ascertaining precisely the identity of every single person in the pool of beneficiaries within a fixed trust
Why? It is mandatory that the trustee gives to the person.
Fixed mis,..certainty ...
g. fixed trust set out
Beneficiary has an entitlement and vested interested so trustees duty is mandatory – must be able to identify each of us precisely
As trustee, cannot ascertain full list/ precise number of beneficiasry and u are supposed to distribute in a fixed trust, all the [property with result back to settler on resulting trust. The trust will fail and result back
However, if you know the identity of beneficiary but cannot find him, then the trust will not fail
physically cannot locate person – trust does not fail
the share can be saved under an instrument called the Benjamin order
depending on how expensive it is to preserve share, one of the methods taken:
pay share into court for safekeeping. After 7 years, presumption of death
it depends on how much it costs, as trustee decide which is the most cost-effetcive way to preserve
or - take an undertaking from them, that tey wil pay back once they are found
or - - insurance. The insurer would pay out if they are found. So insurer taking risk
Fixed express trust has a different pool of beneficiaries
Under a discretionary trustm the duty of the trustee is to to select amog a class of beneficiaries who are to receive and the proportions
U select the person and quanity of gift
You right as beneficiary to be considered, but not duty/entitlement against property
Orinigianlly, the courts said that under a discretionary trust, the test for certainty of objects – list of beneficiaries
Where you cannot name a list of potential benefificiaries, histortically this express trust fails
The court required list certiany to apply to discretiosaty trust: if no trustee will consent to distribute prop, the court is the last option
So historically, court said they had no discretion to distribute amogst pool of beneficiaries. Would need to know entire pool even if were to select. Would not want to select for known pool – entire pool. Because they don’t have the discretion
Courts don’t want to be selecting from a lesser pool. As a last resort they would have to effect the distribution, they are not prepared to choose from known pool
Even if settler said gift goes to certain people, still wnt whole pool
The courts restraint in terms of the dis trust, they thought they would not be respecting true settler intention, when picking from lesser pool
Disrespecting true settler intention were they to select from only a known pool, need the whole list
Where discretionary trust with a small fam, the courts = 2faced as to list certainty requirement
Easier to name every single person in the pool
Small family trusts – we are given a discretion to select. They can name every person.. they have to still guess as to settler intention..dont lke this
They then- give every single member of fam the same proportion
Converging discre ttust in small fams into a fixed trust
Making it a fixed trust in a way. Courts being hypocritical
Yet with big discretionary- courts would not so easily treat it as a fixed trust
Modern law – courts more sympathetic. Discretionary trust – have to be able to name evry single person otherwise trust fails
Theory is good but practice is incompatible. .theory: find every single person because the settler had the whole class in mind
Many trusts failed over a period of 30years
1970 – mcfell... Wilberforce changed law to validate the trust
He is being practical, pragmatic.. the law is about resolving practical problems. The true settler intention is that that not every person gets the same
Those who really need something, get deprived for eg, may be against what settler wanted
Failing the trusts over these 30years, the court bankrupted fam’s estates. The settler had died believing that his capital funds would be passed on but in resulting back, the fam had to deal with meeting the inland etc, it crippled them
:S:S:S:SWhat if you had died without taking share, teh courts presumption that you are entitled means it is attached to estate
Small commercial trust, near a family size so did not fail. Family size business. The owner was charitable, left a sum to look after employees of very small business
It was discretionary btu every one coud be listed because of size
But settler wanted disctretion to be exercised and court asked to exercise this discretion (or knew in theory it may need to as a las trsult)
Effect of validation is that it would divide the money equally – no jurisdictional discretion to guess what settler wanted
Said at first, they will validate it and not fail it, divide it equally
So trust is validly set up
In operation
One of the persons within pool of 10 persons dies
Because of the theory that each of these persons would receive 10%.. it is an entitlement
The dead person would get taxed but not receive the money
Ironic and unfair, paying tax and the money goes anyway
How did the ordinary legal adviser react? The hl judges couldn’t react – the hl judges thought themselves as bound by own decisions.. so all the trusts failing, could not fix it, discretionary trust must have list certainty. The judges knew of problem and unfairness but nothing could be done – bound by own decisions.
So legal practitioner had to try to solve situation, solicitor tried to think of ways to help the desire of settler to give to strangers- employees
Started drafting an instrument called a power
Instead of using discretionary trust
Intended to operate like a discretionary trust
Donnee of a power. Give them the right to select among a pool of objects and determine the quantum the amount the selected object would take
To courts: cant fail it because it is not a trust. Done of power not under duty to distribute. If they choose not to distribute, all the property will result back to estate
So living in hope.. appointing someone who u hope and pray will distribute
No duty
Left with halfway house
This word, power has 2 meaningS:
1) the power to dispose of property – call this dispositive power
2) administer the affairs over trust properly – call this administrative powers (cuz they manage)
Today ---- dispostive power
The person you can give to could be your trustee, nad just tell them there is no duty.
Could give it to fam member
The donnee of the power does not have exercise the power
If u give ethepower to some1 who is already a trustee
Then-gloss to power --- fiduciary power.. law puts gloss to power.. the difference it makes- more active duty to survey constantly the pool.. regulate it. Advised to consider whether to exercise the power ..should u exercise the power, u must exercise it not ultra vires. Must exercise it within pool and capaciously – meaning 0 cannot act how someone else in your shoes would not. Appoint within the group. There is still no duty with this fiduciary power
U can specify the type of pool where it will be distributed:
General power- - everyone in world, including yourself; even goes to done who appointed you
Can specify the objects of the pool as special ones,, defined group. Special power
Third one – intermediate or hybrid power – always used when trying to avoid tax
Where a trust works but fails to be distributed because you can’t find a willing trustee, the court will be the distributed themselves. So this shows where yu have a valid trust, it is a duty to distribute
Where power given to trustee.. if you give it to a family member not trustee they are just a point of reference..
You can avoid resulting back with power draft a default appointment clause:
Gives X power to appoint power, in absence of her appointing, the books shall be given to other students..
Absence of x appointing ..books will be distributed on a pari passu basis
If you don’t put in the default clause then property will be resulted back
General – don’t need to be exercised (the powers), courts now facilitating gift. The greater the gift the more the court will try to give effect to intention of settler
Courts have said – where there is a commercial pension situation, they will, if it is felt that it is right, they will interfere actively – say – the donne of power of appointment granted to trustee will virtually be mandatory
Trusts and powers both defeasible
Powers are quite robust
Both are defeasible if conceptual class for beneficiaries and objects is unclear
Unclarity may be – dependents. Who are the dependents as a conceptual class?
In the absence of a statutory provision (there is a list of statutory dependents)
More and more our society is consisted of ‘blended’ fams. So, who is your dependent? Blended relationships.
In the absence of statute- who, in the current social context is your dependent? So may be deafisible.
So, what is the certainty of object within a power?
Re CASE -- -
Harmon j –a power will be certain if it can be said that the certinaty of any individual claimainant, as and when he presents himself that he does not or does fall within the class of potential objects
See notes – unclear
power is valid as long as it can be said of any claimant as and when he presents himself, should be able to say whether he does or does not belong in class
if it can be said for sure whether they are a member of the class, the power is there
within a power itself, as long as it can be said of any person, whether they are in or out of class, the power will be classified as valid from the very beginning
The problem with the power is that the settler can have the effect of settlign their business
The problem was that the courts tried to help. when they dound a discretionary trust which is likely to fail, try to see it as a power
Re sayer and re.... see notes
See how courts can read a trust as a power or vice versa
Sayer 1956, second in notes is1962
Courts wanted to give everyone equally
In 1956 practice statement HL gave itself – finally able to overrule itself
The hl was bound by irc and broadway cottages in 1955
Now, 1970 – mcfell and dalton – 4yesrs after statement.
CA and high court: thought the gift in this case- thought the provision was a power. Lord denning in CA: said it was a power
In HL – gift –see notes ‘the trustee shall apply the net income....’
Says the trustees SHALL apply – hl did not run away from it. Hl – called it a trust – called it a trust power. So its a trust
Lord wilbeforce wants to change the law here from cottages case above
History ----
Hl case 12mnths earlier hl heard another case – said it was a power.
Lord up.. principle judge. Sitting with him – lord hotson nad lord dawson with 2 others
In their decisions concerned with mere power, hl reaffirmed cottages case
Said – the house does not have discretion, there should be a list with a discretionary trust
One person cannot consitiute a class. Reconfirms listcertainty pronounced in cottage case
In mcfell and Dalton, the constitiuton of bench changed. Dalton - 3 to 2 decision – shaky decision. The 2 that dissented sat on previous case- did not change.
Lord Wilberforce- lead judge; 2 other – lord reed; vicol delhorn..!? :s
Failing generous trusts – the practical proposal forumulating: we should try to respect true settler intention, with teh administrative assistance of court if necessary where it is practically possible to do so
Yes, wilbeforce says – understands a trust is mandatory adn power is not. But already had 12 yeards earlier, one person cannot form a group
Must survey more widely and extensively with... XXX degree
So trustee has to make a more systemalticaly survey and ultimaitely distribute
The differences of degree between power and trust.. nt a difference in principle
The test of Certainty of object of power same as test of object of trust (HIS PROPOSAL)
Concept of beneficial pool must be clear
Duty of trustee is to be robust;
Denning proposed certainty of object test same as ...
12mnths later lord Wilberforce adopted it.. .
Being practical – assimilate the test, make it low: all the trustee has to do in the discretionary trust is to survey more widely.

Survey more widely.: Question of degree, practical exercise.
specialist third party advice can be asked for to cure uncertainty e.g. conditional gift – evidential and certainty never defeats trust.
Wilberforce – practical exercise – if it is practical and certain to effect gift, they will effect it.

Seminar: other barrier mentioned by wilberfoce- administrating unworkability can defeat trust.. gift to residents of greater London. Does he mean the money to small given size of pool? So administrative problem? Is the pool too big? What is meant by adminitratibly unworkable

Case of west Yorkshire

Trusts lecture term 1

week 7

page 4, last paragraph of lecture 6 notes. Should be Gulbenkien

USE GRAHAMS BOOK

Continuing lecture
Merging the discretionary trust and power, to achieve a tax mitigation outcome.
From persepective of beneficiary, weakness of discretionary trust can be powerful..
Context is v. Important
3 certainties necessary for creation of trust: certainty of object- needed to know what it was you were being given and if all the same have to check whether it’s tangible or not to see if it needs to be allocated
The law pays lip sevice to principle, organic movement – changes shape
Final certinay – certainty of object
Asbtarct propeositon – test for certiany of objects in discretionary trust – any person coming forward could be said to be inside/ outside of class. Provided the class was conceptually certain
This test came from instrument – test and power aligned so discretionary trust adn objects same as power :S:S:S
Alignment – case sent back to high court and progressed to CA – to find out whether the test itself wouldbe applied from an empirical/evidential persepetive or whether abstract prtopostions would nevertheless still govern the law
Provided the concept is certain. And can satisfy the test..
Who are your relative and dependents? This idea may seem reasonably robust.. dependent under more pressure in the future because of blending with relationships.. serial polygamy ..law will have to keep up with developing lives. How concenptually certain is a dependent?
Relative ?
3 judges: concentrate in mcpfill and daughton
Focus on relatives.. how they applied the trust for validating a discretionary trust which benefitted exemployees etc of a company.
Said – high court – fine. Works perfectly, concept itself is robust
Ca: went back to here, they tried to set up guidlesines as to how to check on the robustness of the test. 3 judges in ca.
Terminology in reading – in the case itself- first heasring in high court and ca- looked at pension scheme set up, both decided the instrument conferred a power upon trustees. Wo
Hl: used the terminology trust power.
Only upon practical application and rehearing of test – reheard on specific conceptual point. As re badens no 2 (mcphill daughton - rehaeard)
Other judges avoided q of naming it, said by one judge- discretionaty trust
Hearing of 2 words – relatives..
Fixed trust – fixed as to beneficiary, fixed as to intention – CONSTANCE. Intention – hunter
Mere powers – look for words in notes that indicate that nothing needs to be done
Constantly full o all’s. Any’s.. tells you it’s not mandatory. See notes.
Hayes – can excecute all or any deed
Holder of power in the capacity of trustee – you may have to do abit more – turn the quwaetion over about distribution more constatntly; may need to have.. survey more widely;
Must be clear you don’t act ultra vires
Refinement of this power given to fiduciary
In the commercial area, the courts can force to distribute as though it is a discretionary trust. From a fiduciary perspective – have to do more.
Practically applying words such as relatives and dependents to the test in discretionary trust.
Test: if class is conceptually certain, whether it can be said of any person whether they are inside or outside of any class.
CA: 3 judges sat – each came up with diffeernet guidelines – Lord justice saks – once the class of person to be benefitted.. then becomes a q of fact Gulbenkien see notes
Goes on to accept that relatives are conceptually certain, because they are mmebrs from common ancestor
Problem with what he has said- has avoided looking at Question of fact to brought about by evbidence, seems lie all he is saying is that everyone who wants to be considered has to prove themselves. Sidestepped. Not a 2tiered approach..
..
Once the class of persons to be benefitted is conceptually certain, each person must bring evidence as to whether they are inside or outside of class.
g. committee set up, email sent around academic staff, most of them chose not to respond – never had anything to do with the approval. Ignores. Another email – needed 7 people from 42, again X ignores. Sufficiently conceptually certain??
How conceptuaslly certain is a committee of academics for marksheet of 4th year? ..
So eventually, a lord saks is done. Found people on the basis of evidence.. as a member of class as lord saks test/
Called on basis of evidence, not concept.
So bypassed that concept has to be sufficiently robust
Jusge mcgaw – says that the test is that it has to be conceptually certain. Meaning: there might be people in class who we don’t know/not in class. But, if substantially large number, concept wil be robust.
Says this because – lord Wilberforce says – the court must give effect ti the settlers intention
The concept may be robust even if cant say someone belongs in the class/not
Mcgaw = brave. On basis of Wilberforce saying v alidate wherever possible, provded we can see a signicficatnyl large number of persons who can satisfy the cocepnt is fine even if we cant say that these people don’t at start fit clearly..
So, perfectly possible because of need to validate, to make a concept valid
Movement in trust, trying to take it away from principle. Moving from idea that there must be a real certainty of object, moving towards .. certainty of object is . moving to uncertainty of object. Courts not applying it strictly, moving towards an uncertainty of object.
Staff (judge CHECK) – will onloy validate this concept by applying statutoy next of kin test.
Only those that fit into this will qualify as relatives.

Apply- - -mcgall –

Wherereer possible, courts are going to merge power... he is most robust, validate everything. Wherever possible and then can use this flexibility..

Refer back to Wilberforce

Concept itself is robust. Could say saks is on the same side – relatives common ancestor

Is the concept itself is shakey,
Evidential uncertainty – and ascertainitnbility. These words used interchagebaly by Wilberforce. So – convoluted.
Evidential uncertainty – there must be evidence abvailble to prove identity.. evidence available to id person coming into class
Fidning the concrete certaionty
Was said by wilbeorfice that evidencual uncertainty never defeats a discretionary trust. BY THIS HE MEANS THE WHEREBOUTS, THE ASSCERTAINABILITY...! nevrrr defeats discr trust
g. if person ant be find, insurance etc to pay them once they are found.
Administrative unworkability WILL defeat a trust .,said by Wilber
Pushing things forward
What is it exactly that a discretionary turst confers on a beneficiary/ what rights? You’;d think beneficiary in privlidged position
Inland rev would like to say – discretionaty trust beneficiary ahs the same as property.
If you say someone has a proety interest, they have teh potential to bear the burden/ so according to inland they should be linked
In a trust fund where e ntire trust fund is to be disctrubuted so must be wider in survey and careful. So by inference – pointed out that there is a discretionary trust where not all income needs to be distributed. This is common in commercial

Non- exahstive discretionaty trust

Given Wilberforce saying that must survey more widely in the opposite, does this mean u can be less caredful?
Duties of trustees under discretionary trust – must survey more widely
In non exahsitive – less widely survey
If trustees duties are limited, what are the beneficiaries rights?
Are their right also more limited?
Petted – author. It is hard to find where the equitab le interest of a discretoinarty beneficiary lies espesh in non exaushitive discretionary trust
Omnly sitch whre you can find equitable interest in discretionay trustm where ebveryone adult, everyone agrees it should be
But for the one type of closed trust, the equitable interest in didscreintay trust is not easy to detect
Discrestionary trust beneficiary has no expectation of property, only right to be considered, cant individually complain. Can only complain if t5rustee clearly acting ultra vires
Otherweise, no control over trustee
The only right, is to keep the property once distributred to him. Otherwise, cannot complain as an individual. At discretion of trustee who should have a property interest.
So author saying – difficult to find teh interest
If this is the case, what does the fact that they are clearly a member of a class , how does this help?
SO - - - WHAT IS THE POINT OF THE CERTAINTY OF OBJECT?
Beneficiary weakness, strength for settler

Merging powers and discretionary trust

Discretionary trust benef in a weak position. Espesh so in non ehassitve.
Only oiint in time where heis strong, where he is a class member of saunders and a=bautreier kind of trust. Where they are all in ther class and grown up ETC.
Ogtherwise, no entitlement to property, no standing to complain
Therefore – equity has expoitled this weakenss to make it a strnght:
1) where equity uses the weakness in a non evashtive.. creates a black hole trust. Tax mitigating. You can set up a trust in overseas jursidcation, name beneficieres as on the face charities to benefit from trust. Its a discretionary trust. Gives the scheme a look of a trust, charities don’t even know. They don’t have to.
Meantime, real beneficiaries of non distributive trust are hidden under a power – intermediate power given to trustee. Secret instructions from settler, these objects of interemediate power benefit. Stack the weak beneficiaerties alongside intermediate power, THIS set of persons actually benefit from trust.
Becomes not a mere power, a fiduciary power – the court can effect a distribution if they see fit. Intermediate power.. difference between this and special. And different situation – commercial etc.
Movement of law – courts not moved from looking at sacred property rights of beneficiary.. allowed equity to exploit weakeness.. settler control.
Black hole trust – settler then hides themselves furterh, uses nominee to pay a small fund.. to pretentd they are the settler
So masking..
Weakness of discretionary trust..employ strength of intermediate power
Intermiediate power became so strong 0 sued early on in family planning situations. Re bloustan, re ... arguments about the relatives strength of powers
Small family planning tax evasion schemes
Sheer numbers never defeats ppower – blousatn case.
Bkoud refined by re manis tys - good case. Lord templeman – 1960s – tax.. lord templeman – liberal –veryyy.. tax evasion judge of time
Templeman – said – intermiediate powers are never defeated by concept of conspicousnes
Special pwers can be defeated by cos...
So no scheme will defeat intermiedate power
So above good thing
But said – eg. Cospicousnes could be resdeints of greater London. Wilberforece
Merged administrative workability with conspiciousness.
RE HAYES.. mcgary – saaaays -- - sheer numbers never ever ever defeat intermideiate power. Saves us.. defeats lord templemans eg above.
So now, can push.. equitys explitation - can push strength of intermediate power
Now, at this year- courts further in merging.. 2003 case
Object under a trust can ask for information from trustee. They are elevated to same position as beneficiaries under discariontary trust where they seek info (except for about choice of beneficiary).. rosewood case
Last 12months – breaksphere and ackland (in essay list) –confirms postion of conversion
Conditional gifts
If you have individual gift but concvept is soo uncertain that it cannot be put into form of docre trust. Can draft.. e,.g. friends. Conceptually uncertain.. friends
Would not affect another [ersons abilioty to take
Eg of case – done shall take gift provided they would stay within jewish marriage