Trusts HR Assignment Topic Examples

1. How has the decision of Harrison v Gibson changed the HR on the certainty of intention?

It is established HR that, in order to establish a trust, the settlor must satisfy the three certainties: subject matter, intention, and object. Certainty of intention is generally defined as clarity of intention to create a trust as opposed to a mere gift or moral obligation. Formerly, the nature of the language or words used was examined to in order to determine whether intention to create a trust existed. Certain precatory terms such as 'hoping' and 'trusting' were deemed indicatory of an intention to create a trust. Gradually, the approach of the courts widened and attention was turned to the general circumstance of intention; an approach which had attempted to emerge as early as 1871 in Lamb v Eaves. This study will define the HR's current stance on intention, observing the plethora of case decisions leading up to and following Harrison v Gibson. How certainty of intention has changed in scope and definition will be evaluated in order to conclude whether it has been developed in a desirable and appropriate fashion.

Suggested Reading

• Hudson, A 2010 Equity and Trusts, 7th edn, Oxon: Routledge-Cavendish.
• Davies, JD 1980. 'Constructive Trusts, Contract and Estoppels: Proprietary and Non Proprietary Remedies for Informal Arrangements Affecting Land', Adelaide HR Review, vol. 7, no. 200.
• Edwards, R & Stockwell, N 2007. Trusts and Equity, 8th edn, Essex: Pearson Longman.
• Penner, J & Padfield, N 2010. The HR of Trusts, 7th edn, New York: Oxford University Press.

2. 'The doctrine of cy-pres does not do justice to the intentions of the deceased.' Discuss.

The cy-pres doctrine applies to charitable trusts that are considered impossible or are unable to be fulfilled. In such an event an order may be made by application of the trustee causing the redirection of the trust funds to a purpose which is as close as possible to the original purpose. This study will explore how the HR has dealt with the problem of determining the intentions of the deceased. As the criteria adopted to determine where and how a trust is to be redirected have gradually expanded, concerns have been voiced in response to the degree of importance given to the testator's original intentions. This study will critically examine exactly 'how close' the cy-pres doctrine actually is to the testator's original intention.

Suggested Reading

• Edwards, R & Stockwell, N 2007. Trusts and Equity, 8th edn, Essex: Pearson Longman.
• Garton, J 2007. 'Justifying the Cy-Pres Doctrine', Trust HR International, vol. 21, no. 3.
• Moffatt, G & Bean, G 2009. Trusts HR: Text and Materials, 5th edn, Cambridge: Cambridge University Press.

3. Critically examine the courts' consideration of financial benefit in the context of trustee powers of investment.

This study will examine the way in which the courts consider the financial benefit in the form of benefit of beneficiaries in the context of trustee powers of maintenance or investment and advancement and in the utilisation of their power of variation of trusts. The study will similarly examine how the judiciary has interpreted and emphasised the importance of financial benefits to the exclusion of all other considerations. Judicial decisions and case HR relating to the Trustees Act 1925 will be critically evaluated in order to determine how financial benefit has been interpreted and applied and whether trustees are merely performing their obligations. It is apparent that trustees are expected and required to respect the words of the trust when exercising their discretion. Yet this does not preclude trustees from exercising their power to administer the trust in favour of its beneficiaries who have the right to intermediary income. Have the courts taken advantage of the ambiguity of legislation, thereby granting trustees too much power?

Suggested Reading

• Hayton & Mitchell, C 2010. Trusts and Equitable Remedies, 13th edn, London: Sweet & Maxwell.
• Panesar, S 2010. Exploring Equity and Trusts, Essex: Pearson Education Limited.
• Hudson, A 2010. Equity & Trust, 3rd edn, Oxon: Routledge- Cavendish.

4. 'The decisions of the High Court and the Court of Appeal in Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd (In Administration) [2010] EWHC 1614 (Ch); [2011] EWCA Civ 347 have made the HR unclear as to the type of remedies the court will allow for breach of fiduciary duty.' Critically discuss this statement.

A fiduciary duty is commonly defined as a legal or moral relationship of confidence voluntarily entered into between two or more parties. One of the harshest and most arduous rules in equity; the fiduciary duty demands honesty, altruism and loyalty. Its demands are inflexible, imposing upon the fiduciary the duty to not make any unauthorised profit from the trust and to not cause any conflict of interests to arise. Yet what are the consequences of breaching a fiduciary duty? This study will explore the HR's response to breaches of fiduciary duties and attempt to determine how the term 'liable to account' has been applied and defined in this context. It will ultimately be proposed that the ambiguity arising from the term when applied to proprietary and personal claims was considerably eased by Sinclair. Yet how have the remedies fared since the decision?

Suggested Reading

• Hayton & Mitchell, C 2010. Trusts and Equitable Remedies, 13th edn, London: Sweet & Maxwell.
• Panesar, S 2010. Exploring Equity and Trusts, Essex: Pearson Education Limited.
• Hudson, A 2010. Equity & Trust, 3rd edn, Oxon: Routledge- Cavendish.

5. No principle perhaps has greater authority behind it than the general proposition that a trust, not being a charitable trust, in order to be effective, must have ascertained or ascertainable beneficiaries." Re Endacott [1960] Ch. 232, Lord Evershed M. R. at 246

A purpose trust is a trust in which there exist no beneficiaries; it is therefore deemed unenforceable. Although a charitable trust does not have any definable beneficiaries, it can be enforced by the Attorney General. This study will examine the HR on charitable trusts in relation to the important role of the beneficiaries and the requirements set by the courts and legislation in enforcing a charitable trust. How is the distinction made between no beneficiaries and no definable beneficiaries? How have exceptions to the need for beneficiaries to a trust been devised and are such exceptions realistic or too many in number? It will ultimately be concluded that, while exceptions to the beneficiary principle are suitable and in some cases desirable, the courts must be careful to place limits upon the number of circumstances that can provide for such an exception.

Suggested Reading

• Ramjohn, M 2008. Text, Cases and Materials on Equity and Trust, 4th edn, Oxon: Routledge Cavendish.
• Mitchell, C 2010. Hayton & Mitchell : Commentary and Cases on the HR of Trust and Equitable Remedies, 13th edn, London: Sweet & Maxwell.
• Pettit, PH 2009. Equity and the HR of Trusts, 11th edn, New York: Oxford University Press.

6. The presumption of resulting trusts and advancement have become defunct in this modern age and should be abolished.

As society has moved into the twenty-first century, the role of the resulting trust has become a considerably controversial topic. Many critics have succumbed to the conclusion that they are simply outdated; a 'thing of the past'. This study will explore this conclusion, examining the orthodox position of the resulting trust, which does not require common intention to be formed. Recent attentions have however turned to the claim that common intention is the core concept of determining whether a resulting trust should be declared. Does the resulting trust offend principles of personal interest and autonomy? Are resulting trusts indeed not fit for their purpose in modern day trusts HR? These questions will be explored on both a national and international level.

Suggested Reading

• Glover, N & Todd, P 1996. 'The Myth of Common Intention', Legal Studies, vol. 16, no. 3.
• Swadling, WJ 2008. 'Explaining Resulting Trust', HR Quarterly Review, vol. 124, no. 72.
• Goldstein, S 1997. Equity and Resulting Trusts, Oxford: Clarendon Press.

7. While the HR seeks to impose certainty, litigants bring only confusion. Traditionally, equity and the HR of trusts have been concerned with providing justice to balance out the rigour of the common HR. Explain and illustrate this statement in relation to the development and operation of modern equity.

This study aims to discuss the above statement with specific emphasis on the traditional role equity and trust: that to provide justice to correct the harshness of the common HR. Whether litigants matters presented to equity confuse the matter will be explored, as well as the effects of such cases upon the HR's need for certainty. Landmark cases will be discussed and the study will ultimately seek to demonstrate how confusion caused by litigation has affected the operation and development of modern equity. How has the importance of certainty fared in the light of litigant's cases? While on a general level the above statement can be deemed accurate, a closer and more detailed examination reveals alternative conclusions.

Suggested Reading

• Hudson, A 2009. Equity and Trust, 6th edn, Suffolk: Routledge.
• Snell, E 2010. Principles of Equity, 30th edn, London: Sweet & Maxwell.
• Watt, G 2009. Equity Stirring: the Story of Justice beyond HR, Oxford: Hart Publishing.

8. The any given postulate test still leaves many issues unresolved in relation to uncertainty of objects under a discretionary trust. Examine this statement in relation to McPhail v Doulton [1970] 2 All ER 228 and Re Baden No2 [1972] 2 All ER 1304.

This study will explore the decision of McPhail v Doulton and the test devised therein to determine the uncertainty of objects under discretionary trusts. The test will be critically evaluated to determine whether criticisms are mistaken as to its content or scope or whether the test is incomplete.

Suggested Reading

• Hudson, A 2009. Equity and Trust, 6th edn, Suffolk: Routledge.
• Snell, E 2010. Principles of Equity, 30th edn, London: Sweet & Maxwell.

9. What are the principles on which fully secret and half-secret trusts are enforced? In what circumstances, if any, is it relevant to consider whether such trusts are express or constructive?

Concerns surrounding how the HR distinguishes between and enforced fully secret and half secret trusts will be examined in this study which will seek to locate any concrete principles behind this area of trusts HR. Are the principles, if found, a result of developed case HR decisions or do they merely represent random concepts? This study will evaluate these issues and examine the circumstances in which such trusts can be considered constructive or express.

Suggested Reading

• Goldstein, S 1997. Equity and Resulting Trusts, Oxford: Clarendon Press.
• Hudson, A 2009. Equity and Trust, 6th edn, Suffolk: Routledge.
• Snell, E 2010. Principles of Equity, 30th edn, London: Sweet & Maxwell.

10. Discuss the approach of the courts to trusts espousing political purposes.

Thus far the courts' approach to trusts espousing political purposes has been rather difficult to encapsulate in a single term. Its approach has differed over the decades, though it has generally ascribed to the principle that trusts for charities pursuing political purposes are not valid. Yet how has this approach been developed and upon which principles is it based? This study will examine case HR decisions and statutory provisions in a bid to determine the approach of the courts to trusts espousing political purposes.

Suggested Reading

• Hudson, A 2009. Equity and Trust, 6th edn, Suffolk: Routledge.
• Virgo, G 2012. The Principles of Equity and Trusts, New York: Oxford University Press.