Download Understanding Express Trusts: Nature, Creation, and Key Concepts and more Exams Law in PDF only on Docsity! Nature and Creation of Express Trusts Trust – is an arrangement involving property whereby one person, the trustee, has an obligation to hold the property for the benefit and on behalf of another, the beneficiary. - The most common type of trust arises when the trustee is the legal owner of the property and the beneficiary has a equitable beneficial interest. - The trustee will always have a fiduciary obligation to hold the property for the beneficiary. - The beneficiary will always have an equitable interest, which is enforceable in equity. The nature of the trustee-‐beneficiary relationship 11.2 - Fiduciary - Relationship of utmost trust and confidence - Enforceable only in the courts of equity Indicia of a trust The three indicia of a trust are: trustee, property and beneficiary. Characteristics and elements which both indicate the existence or and are essential for a trust: Trustee: The legal or equitable interest in the property is held by one or more persons and/or corporation. The holder of the interest must have an obligation to deal with and/or administer the property on behalf of and/or for the benefit of another person or persons -‐ This is a trustee. Property: There must be some form of property that is capable of being held on trust. Must be clearly indentified and identifiable. If there is uncertainty as to the indentity of the property, there can be no trust. The property which forms the substance of the trust is called ‘the subject.’ Beneficiary: There must be one or more persons for whose benefit the trustee is obliged to hold the property. These are ‘beneficiaries’ or ‘objects’ of the trust. A trustee may be the beneficiary of a trust if there is one of more other beneficiaries but cannot be the sole beneficiary. If this occurs, the title to the property and the beneficial interest in the property will merge and the trust will no longer exist: Re Cook [1948] Obligations/Duty: Finally, the trustee must be under an obligation to hold and administer the subject matter of the trust for the benefit of the beneficiary. This obligation creates corresponding rights in the beneficiaries. If the person who is holding the property is not holding it for the benefit of another person, there is no beneficial interest and therefore, no trust. Categories of trusts Express Trust Express trusts are trusts created with the intention that the trustee holds the property for the benefit of the beneficiaries. Terminology: The settler – The person who creates the trust and who transfers the property to the trustee. A person may declare that they are holding property for the benefit of another and thereby become both the settler and the trustee. The trust instrument – Express trusts are usually created by the execution (or signing) of a trust deed, this is sometimes called a trust instrument. The deed sets out the name of the trustee, the exact identification of the property and the names of the beneficiaries. Under some circumstances a trust may be created by oral declarations. Public trusts – Are created for the charitable purpose which benefit the public generally. Private trusts – are formed for the benefit of specific beneficiaries or classes of beneficiaries. Testamentary trusts – These are trusts created pursuant to the terms of a will. Bare trusts A bare trust is the most straightforward form of express trust. The trustee’s obligation – • Hold property until the beneficiaries require title to be transferred to their name; Wade v Wade [2009] • Generally agreed that the trustee’s primary obligation is to preserve trust property. • The trustee’s duties depend upon the circumstances in which the trust is created; Chief Commissioner of Stamp Duties v ISPT Pty Ltd (1998). A Quistclose trust is a particular type of trust which arises when A provides or lends money to B and the parties intend that: - The funds are to be held by B for a specific purpose, but - If that purpose cannot be achieved, or can be only partly achieved, then - B will hold the money on trust for A until it has been repaid to A. Developed from the below case: Barclays Bank Ltd v Quistclose Investments Ltd Facts – In this case “Rolls” was in severe financial difficulty. It had to borrow money from Quistclose Investements so that he could pay dividend to shareholders. The declaration to the dividend created a debt owed by the company to the shareholders. It was agreed between Rolls and Quistclose that the funds should not form part of the assets of Rolls, but would be used solely for the payment of the dividend. The funds provided by Quistclose were accordingly paid into a special account held with Barclays Bank and Barclays were informed by Rolls of the purpose of the special account. Before the dividends could be paid, however, the directors of Rolls placed the company in voluntary liquidation. Barclays attempted to use the funds in the special account to pay off Rolls indebtedness to the Bank. Issue: - Whether, because of the arrangement between Rolls and Quistclose, Rolls held the fund son trust for Quistclose - Whether the funds became part of the assets of Rolls as a result of the non-‐ payment of the dividend - If Rolls were a trustee of the funds, whether Barclays has been given notice of the fact. Outcome – it was held that the agreement between Rolls and Quistclose in regard to the purpose of the funds and their disposition in a special account gave rise to a ‘primary’ trust in favour of the shareholders. It was the intention of Rolls and Quistclose that if the money was not paid out as a dividend, the fund was to be held on a ‘secondary’ trust in favour of Quisclose. Quistclose had the right to be repaid and also the beneficial interest in the funds; ‘the secondary trust.’ Distinction between trusts and other forms of property relationships Trust – fiduciary obligation A fiduciary has a fundamental obligation to act in the best interests of his principal and not to put himself in a position in which his duty conflicts or may possibly conflict with his interest, unless his principal gives his informed consent after full disclosure Whilst all trustees are fiduciaries, not all fiduciaries are trustees. For example, company directors are not trustees: Re International Vending Machines Pty Ltd [1962] NSWR 1408 per Jacobs J, comparing the company director with the Trustee A trustee always holds property for the beneficiary. ii) Trustee – executor An executor is like trustee in that he owes fiduciary duty to the legatees of a will. However, although after probate the executor holds legal title to the deceased’s estate, he does not become a trustee. An executor will only become a trustee if, for some reason there has been a delay in the distribution of the assets (“the executor’s year”) AND the court thinks it appropriate. Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694 iii) Trust – bailment A bailor delivers chattels to the care of the bailee subject to a condition that they be returned to bailor, when the purpose of the bailment has been carried out. The bailee obtains only possession of the property, not legal or equitable title to it. iv) Trustee – legal mortgagee A mortgagee holds the legal title whilst the mortgagor has an equity of redemption. Thus, the mortgagee has a security interest in the property for his own benefit. On the other hand, a trustee holds the property for benefit the benefit of a beneficiary. A mortgagee can purchase the property which is subject to the mortgage, while trustee cannot purchase trust property for his own benefit. v) Trust – agency Agency arises when person (agent) has an express or implied authority to act on behalf of another (principal), usually in a contractual arrangement. Equitable consequences have been superimposed on this common law relationship, so that the agent is treated as a fiduciary. However, an agent does not hold legal title to the principal’s property, although he may have the right to sell it on the principal’s behalf. On the other hand, whilst an agent can bind his principal to a contract, a trustee when he enters into a contract, cannot bind the beneficiaries. Palette Shoes Pty Ltd (in liq) v Krohn (1937) 58 CLR 1. Express Trust A trust created by the settlor (the person who transfers to property to the trustee) with the intention that the trustee should hold the legal and equitable property on behalf and for the benefit of the beneficiaries. • SETTLOR – Assigns legal title to the trustee. • TRUSTEE – Holds legal title to the property for the benefit of the beneficiaries. • BENEFICIARIES – Derive some sort of benefit from the property being held by the trustee. The Essential Elements of an Express Trust The following a necessary for an express trust to be valid: (all discussed in detail below) 1.Three certainties: ü Intention ü Subject Matter ü Object. 2.Beneficiary principle: ü Must be for the benefit of persons or for charitable purposes; Morise v Bishop v Durham (1804) 3.Trust must be either: ü Fully constituted or, ü Supported by valuable consideration 4.Writing Requirement: ü Only where statue require that the trust must be created in writing. Eg. Conveyancing Act s23C. 5.Must be no “buried flaw” such as” ü Incapacity on the part of the creator of the trust ü Illegality of purpose ü Or other vitiating factor