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Trust disputes—table of cases

Trust disputes—table of cases Existence and validity of trusts Topic Case name Summary Author Jurisdiction Existence and validity of trusts Provincial Equity Finance Ltd v Dines (née Breda) [2023] EWHC 103 (Ch) News Analysis: ‘By prosperous voyages I often made…And the great care of goods at random left’—resulting trust and the dominion of express trusts (Provincial Equity Finance Ltd v Dines and a Tragedy of Errors)This case demonstrates the practical difficulty of establishing a claim for resulting trust where a chaotic deceased used bank accounts for mixed purposes and establishes that an express trust may supplant the presumption of resulting trust even where the party advancing funds is not a party to the express trust. Nicholas Holland, McDermott Will & Emery UK LLP England & Wales Existence and validity of trusts Attorney General v Zedra Fiduciary Services (UK) Ltd and others [2022] EWHC 102 (Ch) News Analysis: Cy près scheme approved for £600m charitable trust to be applied to reduce the National Debt (Attorney General v Zedra Fiduciary Services (UK)...

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Nature and classification of trusts—the nature and classification of trusts

Nature of trustsThe trust conceptTypically, the settlor is the original owner of property and creates a trust by conveying it to one or more trustees and manifesting an intention that it is to be held on trust for one or more beneficiaries or for the accomplishment of a particular purpose. The trustees become owners at common law and hold the property or rights in trust for the beneficiaries (cestuis que trust) or that purpose. The trustees come under an equitable obligation enforceable by the beneficiaries. No trust is created, whatever the intention of the settlor, unless legal title is vested in the trustee (this is known as constituting the trust).DefinitionWhile the trust concept is recognisable, a definition is not so easy.The definition set out in The Law of Trusts and Trustees 10th edition by Underhill and Hayton was adopted by the Court of Appeal in Green v Russell per Romer LJ: 'A trust is an equitable obligation, binding a person (who is called a trustee) to deal with property over...

Creation of trusts—by declaration

Express lifetime declarationsWhere a trust is created by an express lifetime declaration, the settlor simply declares that they hold the trust property on trust for the specified person or object absolutely. The settlor must be unequivocal in their declaration and should communicate the terms of the trust to the beneficiaries. The following must be present:•there must be property capable of being subjected to a trust•the trust must meet the requirements for formal validity•the terms of the trust must be sufficiently certain (essential validity)•the purpose of the trust must not be unlawfulEvidential requirements—personaltyProvided the conditions for the essential validity of the trust are fulfilled, a declaration of trust in respect of personalty (other than an equitable interest) may be declared:•in writing•orally or•(in exceptional cases) by conductThere are no legal requirements as to the form of a declaration of trust of personalty. However, it is good practice to ensure that all the terms of such a trust are contained in a written instrument in order to establish the terms of the trust...

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Loan note instrument—private M&A—share purchase

Loan note instrument—private M&A—share purchase This Instrument is dated [insert date] 20[insert year] Parties 1 [Insert name of issuing company] incorporated in England and Wales under number [insert company number] whose registered office is at [insert address] (Issuer) Background: The Issuer has resolved to create up to a maximum nominal amount of £[insert value] [insert rate]% [subordinated] redeemable loan notes to be constituted as set out in this document. It is agreed as follows: 1 Definitions and Interpretation 1.1 In this Instrument, unless the context otherwise requires the following expressions shall have the following meanings: Business Day • means a day, other than a Saturday, Sunday or public holiday, on which clearing banks are open for non-automated commercial business in the City of London; Certificate • means the certificate in the form set out in Schedule 3; Conditions • means the conditions set out in Schedule 1 as amended from time to time in accordance with this document; Default Event • means any of the events specified in clause...

Equity warrant instrument—private limited company

Equity warrant instrument—private limited company This Warrant Instrument is dated [insert date] Parties 1 [Name of Issuer], incorporated in England and Wales under number [company number] whose registered office is at [address] (Company) Background The board of directors of the Company has by resolution passed on [insert date] authorised the creation of warrants giving their holders the right to subscribe for new shares in the capital of the Company at a subscription price and on the terms set out in this Instrument. THIS INSTRUMENT PROVIDES: 1 Definitions and interpretation 1.1 In this Instrument, unless the context otherwise requires the following expressions shall have the following meanings: Adjustment Event • has the meaning set out in paragraph 3 of Schedule 4; Articles • means the articles of association of the Company for the time being; Business Day • means a day, other than a Saturday, Sunday or public holiday, on which clearing banks are open for non-automated commercial business in the City of London; Certificate • means...

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The parties previously cohabited and have a child. The former family home is in the sole name of one party, who continues to pay the mortgage on the property but no longer resides there. Can the mortgage payments be offset against a liability for child maintenance?

The parties previously cohabited and have a child. The former family home is in the sole name of one party, who continues to pay the mortgage on the property but no longer resides there. Can the mortgage payments be offset against a liability for child maintenance? It is open to parties voluntarily to come to an agreement regarding child maintenance and it is common that informal arrangements are made whereby one party pays the mortgage on the property in which the other party and the child are living. However the parent with responsibility for the child could apply to the Child Maintenance Service (CMS) for a calculation of maintenance obligations in accordance with the statutory framework and formula governed by the Child Support Act 1991, which would replace any such obligation. They could also seek to bring a claim to establish an interest in the property, whether by way of a common intention constructive trust under the Trusts of Land and Appointment of Trustees Act 1996, or by way of...

T left a life interest in T's share of a property to T's spouse, S. S's new partner, P now resides in the property with S. What rights does P have in the property as a result of P's occupation?

T left a life interest in T's share of a property to T's spouse, S. S's new partner, P now resides in the property with S. What rights does P have in the property as a result of P's occupation? As a life tenant of a share of the property, S is entitled to occupy the property, so long as the purposes of the trust include making the property available for their occupation, the property is available and suitable for occupation under section 12 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). If S holds the remaining interest in the property, no one else will hold a right to reside there, although it is conceivable that there are other owners of the remaining share(s) of the property who also have a right of occupation under TOLATA 1996, s 12. TOLATA 1996, s 13 governs where there are more than one person with the right to occupy a property. Without any beneficial interest in the property,...

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Family weekly highlights—17 October 2024

This week's edition of Family weekly highlights includes details of the Family Procedure (Amendment) Rules 2024, SI 2024/1016 and the Conkerton memorial lecture to the Liverpool Law Society by Mr Justice Cobb. Details of recent judgments are also set out including a decision on detrimental reliance and constructive trusts and an application for a confiscation order within contempt proceedings.

Property weekly highlights—10 October 2024

This week's edition of Property weekly highlights includes: second reading of the Renters’ Rights Bill, the coming into force of provisions of the Leasehold and Freehold Reform Act 2024 which amend the Building Safety Act 2022, biodiversity gain plan templates for phased developments and cases on constructive trusts in bankruptcy, landlords’ attempts to remove leases from restructuring plans and SDLT.