frames as not to give those persons any locus standi to apply to the court to

Frames as not to give those persons any locus standi

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frames as not to give those persons any locus standi to apply to the court to enforce the trust, … the beneficiary principle would … apply to invalidate the trust” - controversial category; not used in Australia to validate such a purpose T Topic 13 – Express Trusts
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Equity & Trusts 70517 PART 2 – CREATION OF EXPRESS TRUSTS C. COMPLETE CONSTITUTION OF THE EXPRESS TRUST & WRITING REQUIREMENTS Express Trusts must be completely constituted in order to be valid. “Complete constitution”: generally refers to the irrevocable transfer” of the T pty and the creation of the beneficial interest If the T is completely constituted: it is enforceable by the beneficiaries (even if volunteers ) because the settlor has fulfilled his intention by constituting the intended beneficiaries as holders of the equitable interest: Ellison v. Ellison (1802) 31 ER 1243 If T has not been fully constituted: a volunteer beneficiary will not be able to enforce the equitable obligation; “Equity will not assist volunteers” Topic 13 – Express Trusts
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Equity & Trusts 70517 PART 2 – CREATION OF EXPRESS TRUSTS C. COMPLETE CONSTITUTION OF THE EXPRESS TRUST & WRITING REQUIREMENTS Promise to create a Trust At CL a gratuitous promise is not recognised unless (a) valuable consideration has passed, or (b) it is under seal ( Deed ) Another argument: the benefit of the promise under Seal (Deed) is property to be held on Trust for the intended beneficiary i.e., there could be a constituted Trust of the promise Therefore: a) if B gave consideration : can seek specific performance b) if they were parties (together with Trustees) to the agreement/promise (covenant): they could sue on the promise c) if no consideration + not “party to the promise”: beneficiaries will not be able to enforce the trust Fletcher v. Fletcher (1844) HELD that s uch a “T of a promise” existed Davenport v. Bishop (1843) 63 ER 201 Cannon v. Hartley [1949] Ch 213; [1949] 1 All ER 50 Re Pryce Re Cook’s Settlement Trusts Topic 13 – Express Trusts
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Equity & Trusts 70517 PART 2 – CREATION OF EXPRESS TRUSTS C. COMPLETE CONSTITUTION OF THE EXPRESS TRUST & WRITING REQUIREMENTS Express Trusts are created in three main ways Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614 at 621-2; [1937] VLR 15; [1936] ALR 198 per Dixon J 1. By Declaration 2. By Transfer 3. By Direction Topic 13 – Express Trusts
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Equity & Trusts 70517 PART 2 – CREATION OF EXPRESS TRUSTS C. COMPLETE CONSTITUTION OF THE EXPRESS TRUST & WRITING REQUIREMENTS 1. Creation of Express Trust By Declaration - NEEDS a statement by legal owner of pty intended to be final and binding that he, from that moment, holds the pty on trust for another (i.e., trustee retains legal interest, but beneficiary holds the equitable) - “transfer” need not occur, since creator = trustee ( same legal person) The only formal requirement is in relation to land (writing requirement): s. 23C(1)(a) Conveyancing Act 1919 (NSW): the creation/disposition of an interest in land s. 23C(1)(b) Conveyancing Act 1919 (NSW): a declaration of Trust respecting any land or any interest therein must be in writing If “T pty” is only personal pty: One view is that there is no need for formalities ;
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