REVISION PLANNER FOR EQUITY & TRUST-UOL-L5 FOR ONE WEEK

READINGS

 Implied trusts (Resulting & Constructive Trust)

 Breach of trust and remedies
 Equitable remedies

QUESTIONS

 Emma died recently. According to her will, the residue of her estate is to be held
in trust for so long as the law allows:

a) to support Ice Skating UK (ISUK),

b) to construct and maintain a monument to the memory of the great British

figure skater Jennifer Nicks who died in 1980, and

c) to improve the facilities of the Dibley Ice Skating Club (DISC).

Dawn and James have been appointed as the executors of Emma’s estate. They
seek your advice concerning the validity of those trusts.

ISUK was a non-profit association that promoted ice skating in the UK, but it
closed down five years ago. DISC is a non-profit association with 250 members. It
owns and operates a sports club with two ice skating rinks, changing rooms, a
dining lounge, a bar, and other facilities for use by its members. Annual
membership dues are £1,000 per adult and £500 per child.

Advise Dawn and James.

Answer Plan:

 This is a problem question about trusts for charitable and private purposes and
gifts to unincorporated associations.
 Law cases, reports and other references the examiners would expect you to use
Charities Act 2011, ss.1_4, especially s.3(1)(g), Preamble to the Charitable Uses
Act 1601, Morice v Bishop of Durham (1805) 10 Ves 522, Mussett v Bingle
[1896] WN 170, Re Lipinski’s Will Trusts [1976] Ch 235, Hanchett-Stamford v
A-G [2008] EWHC 330 (Ch), Re Vernon’s WT [1972] Ch 300, Re Finger’s WT
[1972] Ch 286, cy-près doctrine.
 A good answer to this question would…
 consider that clause (a) would have been valid charitable trust for the
advancement of amateur sport under s.3(1)(g) CA 2011 but suffers from
an initial impracticality because ISUK ceased to exist before E died. The
funds can be applied cy-près to a similar purpose if she had a general
charitable intention. Clause (b) is not charitable but could be valid as an
anomalous testamentary trust for the creation and maintenance of a
monument for a deceased person, while clause (c) is a gift to the
members of DISC (Hanchett, Re Lipiniski).

 In McPhail v Doulton (1970), Lord Hodson (dissenting) said: ‘In my opinion a

mere power is a different animal from a trust and the test of certainty in the case of
trusts which stems from Morice v Bishop of Durham is valid and should not
readily yield to the test which is sufficient in the case of mere powers.’

Discuss.

Answer Plan

 This is an essay question about certainty of objects.

 Law cases, reports and other references the examiners would expect you to use Re
Baden’s Deed Trusts (No.2) [1973] Ch 9, Re Gestetner’s Settlement [1953] Ch
673, Re Gulbenkian’s Settlement Trusts [1968] 3 WLR 1127, IRC v Broadway
Cottages Trust [1955] Ch 20, McPhail v Doulton [1971] AC 424.
 discuss the requirements for certainty of object and compare discretionary
trusts with both powers of appointment and fixed trusts. It might mention the
certainties of intention and subject matter by way of introduction but should
not dwell on them.

 In Blackwell v Blackwell (1929), Viscount Sumner said: ‘A testator cannot

reserve to himself a power of making future unwitnessed dispositions by merely
naming a trustee and leaving the purposes of the trust to be supplied afterwards,
nor can a legatee give testamentary validity to an unexecuted codicil by accepting
an indefinite trust, never communicated to him in the testator’s lifetime… To hold
otherwise would indeed be to enable the testator to ‘give the go-by’ to the
requirements of the Wills Act, because he did not choose to comply with them. It
is communication of the purpose to the legatee, coupled with acquiescence or
promise on his part, that removes the matter from the provision of the Wills Act
and brings it within the law of trusts, as applied in this instance to trustees, who
happen also to be legatees.’
 Discuss.

ANSWER PLAN:

 This is an essay question on secret trusts

 Law cases, reports and other references the examiners would expect you to use Re
Boyes (1884) Ch D 531, Blackwell v Blackwell [1929] AC 318, Re Gardner
[1920] 2 Ch 523, Kasperbauer v Griffiths [2000] WTLR 333, Ottaway v Norman
[1972] Ch 698, Re Young [1951] Ch 344, Wills Act 1837, s.9.
 discuss the theoretical basis of finding secret trusts, whether they are express,
constructive trusts or testamentary dispositions and the difference between the
‘dehors the will’ theory and ‘fraud’ theory, and whether they justify ignoring the
formalities. It also might ask whether fully secret trusts should be treated
differently from half-secret trusts.