Formalities And Constitution

Front 1

A testamentary trust has to be based on a will or instrument and it can be changed during the testator's lifetime

Back 1

Baird v Baird

Front 2

"It is the essence of a testamentary disposition that it is intended to take effect after the testator's death and revocable during the testator's lifetime"

Back 2

Chopra v Binda

Front 3

What are the formality requirements of a testamentary trust?

Back 3

S.9 Wills Act 1837:

a. In writing signed by the testator or some person by his direction and in his presence

b. The signature is intended to give effect

c. The signature is made or acknowledged by the testator in presence of 2 or more witnesses

d. Each witness either has to attest and sign the will or acknowledge the will in the presence of the testator himself

Front 4

For testamentary documents the doctrine of incorporation applies

Back 4

Re Jones

Front 5

What formality requirements need to be complied with for an inter vivos trust of land?

Back 5

S.53(1)(b) Law of Property Act 1925

A trust of land has to be manifested and proved by some signed writing of a person who can declare a trust or by his will

Front 6

The formality requirements of land need only be proved at the time of judgement it can be created without the formalities

Back 6

Gardner v Rowe

Front 7

What are the formality requirements for shares?

Back 7

Part 21 Companies Act 2006

Must be signed transfer to the proposed new owner along with the share certificate who then pays stamp duty and sends it to the company registrar

Front 8

What is required for the courts to construe a trust is formalities are failed to be complied with

Back 8

The settler must have have done everything which is according to the nature of the property was necessary to transfer the property and make it binding on him - Milroy v Lord

Front 9

There is no distinction between self declaring on trust and declaring yourself to be one of the trustees

Back 9

Pagarani

Front 10

what occurs when a person takes every effort to transfer property?

Back 10

If every effort is taken then equity treats as done that which ought to be done, and the equitable title passes before the legal if necessary, Re Rose

Front 11

When considering whether all that can be done is done, what is the correct test for this?

Back 11

That everything is done that can be done in regards to the person trying to create the property - Mascall v Mascall

Front 12

Does it matter that a step can be reversed in trying to transfer a property?

Back 12

It may be legally possible to retract a step but it may be unconscionable and therefore equity will treat it as doing enough - LJ Ardern Pennington v Waine

Front 13

Proprietary estoppel may have a place in situations where someone has done everything in their power to give a transfer

Back 13

Briggs J Curtis v Pulbrook

Front 14

Being appointed the executor frees you from debts to the testator.

Back 14

Strong v Bird

Front 15

Being the executor perfects an incompletely constituted gift if the intention of gift is still exisitng

Back 15

Re Stewart

Front 16

Being an administrator would perfect a gift

Back 16

Re James

Front 17

Being an administrator does not perfect a gift

Back 17

Re Gonin

Front 18

Just because two trusts have the same trustee and the same objects does not constitute the trust, only a settlor can do that

Back 18

Re Brooks Settlement Trusts

Front 19

If the remaining trustees are the same for the same objects a trust can be constituted

Back 19

Re Ralli's Wills Trust