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Joint and Mutual Wills Chapter Revocation and Revival of Wills Chapter Codicils Chapters Requisites of a Valid Trust Chapter Organization of Trust Instrument Chapter Settlors and Beneficiaries Chapter Appointment of Trustees Chapter Trust Property Chapter Powers and Duties of Trustee Chapters Particular Types of Trusts Chapter Testamentary Trusts Chapter Revocable Inter Vivos Trusts Chapter Irrevocable Inter Vivos Trusts Chapter Life Insurance Trusts Chapter Charitable Remainder Trusts Chapter Charitable Lead Trusts Chapter Special Needs Trusts Chapters California Wills and Trusts: Treatise A practical guide to planning, drafting, interpreting, and executing wills and trusts in California.

Hartog Author , Albert G. Handelman Author. Publisher: Matthew Bender Elite Products. Select a format. Print Book. In Stock. Add to Cart Details. International Order Inquiry. Product details. View a sample of this title using the ReadNow feature This clear, practical guide to planning, drafting, interpreting, and executing wills and trusts in California explains both the law and underlying estate and tax planning concepts. View all products by John A.

Hartog 8. Albert G. Handelman Mr. View all products by Albert G. Handelman 7. Table of Contents.

Related Products. California Wills and Trusts: Forms. Because beneficiaries can rarely enforce charitable trustee standards, the Charities Commission is a statutory body whose role is to promote good practice and pre-empt poor charitable management. There is a strict prohibition on the misapplication of any assets.

Because pension schemes save up significant amounts of money, which many people rely on in retirement, protection against an employer's insolvency , or dishonesty, or risks from the stock market were seen as necessary after the Robert Maxwell scandal. The Insolvency Act also requires that outstanding pension contributions are a preferential over creditors, except those with fixed security. The Pensions Regulator is the non-departmental body which is meant to oversee these standards, and compliance with trustee duties, [] which cannot be excluded. In addition, there exists a Pensions Ombudsman who may hear complaints and take informal action against employers who fall short of their statutory duties.

Despite the name, " investment trusts " are not actually trusts at all, rather than limited companies, registered with Companies House. However, trusts are frequently used as investment vehicles. While express trusts arise primarily because of a conscious plan that settlors, trustees or beneficiaries consent to, courts also impose trusts to correct wrongs and reverse unjust enrichment.

Understanding Trust Law

The two main types of imposed trusts, known as "resulting" and "constructive" trusts, do not necessarily respond to any intentional wishes. There is significant academic debate over why they arise. Traditionally, the explanation was this was to prevent people acting "unconscionably" i. Modern authors increasingly prefer to categorise resulting and constructive trusts more precisely, as responding to wrongs, unjust enrichments, sometimes consent or contributions in family home cases. In these contexts, the word "trust" still denotes the proprietary remedy, but resulting and constructive trusts usually do not come from complete agreements.

Generally, resulting trusts are imposed by courts when a person receives property, but the person who transferred it did not have the intention for them to benefit. English law establishes a presumption that people do not desire to give away property unless there is some objective manifestation of consent to do so. Without positive evidence of an intention to transfer property, a recipient holds property under a resulting trust. Constructive trusts arise in around ten different circumstances. Though the list is debated, potentially the courts will "construe" a person to hold property for another person, first, to complete a consent based obligations, particularly those lacking formality, second, to reflect a person's contribution to the value of property, especially in a family home, third, to effect a remedy for wrongdoing such as when a trustee makes a secret profit, and fourth, to reverse unjust enrichment.

A resulting trust is usually recognised when one person has given property to another person without the intention to benefit them. For some time, the courts of equity required proof of a positive intention before they would acknowledge the passing of a gift, primarily as a way to prevent fraud. It was also recognised that if money was transferred as part of the purchase of land or a house, the transferee would acquire an equitable interest in the land under a resulting trust.

In Fowkes v Pascoe , [] an old lady named Mrs Baker had bought Mr Pascoe some company stocks , because she had become endeared to him and treated him like a grandson. When she died, the executor, Mr Fowkes, argued that Mr Pascoe held the stocks on resulting trust for the estate, but the Court of Appeal said the fact that the lady had put the stocks in Mr Pascoe's name was absolutely conclusive.

The presumption of a resulting trust was rebutted. If there is no evidence either way of intention to benefit someone with a property transfer, the presumption of a resulting trust is transferred is not absolute.

The Law of Property Act section 60 3 states that a resulting trust does not arise simply with absence of an express intention. However, the presumption is strong. This has a consequence when property is transferred in connection with an illegal purpose. Ordinarily, English law takes the view that one cannot rely in civil claims on actions done that are tainted with illegality or in the Latin saying ex turpi causa non oritur actio.

English trust law

Ms Tinsley was the sole registered owner, and both had intended to keep things this way because with one person on the title, they could fraudulently claim more in social security benefits. The House of Lords held, however, that because a resulting trust was presumed by the law, Ms Milligan did not need to prove an intention to not benefit Ms Tinsley, and therefore rely on her intention that was tainted with an illegal purpose.

By contrast, the law has historically stated that when a husband transfers property to his wife but not vice versa or when parents make transfers to their children, a gift is presumed or there is a " presumption of advancement ". This presumption has been criticised on the ground that it is essentially sexist, [] or at least "belonging to the propertied classes of a different social era.

One limitation, however, came in Tribe v Tribe. This created a presumption of advancement. His son then refused to give the shares back, and the father argued in court that he had plainly not intended the son should benefit. Millett LJ held that because the illegal plan to defraud creditors [] had not been put into effect, the father could prove he had not intended to benefit his son by referring to the plan. Depending on what an appellate court would now decide, the presumption of advancement may remain a part of the law. The Equality Act section would abolish the presumption of advancement, but the section's implementation was delayed indefinitely by the Conservative led coalition government when it was elected in As well as resulting trusts, where the courts have presumed that the transferor would have intended the property return, there are resulting trusts which arise by automatic operation of the law.

A key example is where property is transferred to a trustee, but too much is handed over. The surplus will be held by the recipient on a resulting trust. For example, in the Privy Council case of Air Jamaica Ltd v Charlton [] an airline's pension plan was overfunded, so that all employees could be paid the benefits that they were due under their employment contracts , but a surplus remained.

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The company argued that it should receive the money, because it had attempted to amend the scheme's terms, and the Jamaican government argued that it should receive the money, as bona vacantia because the scheme's original terms had stated money was not to return to the company, and the employees had all received their entitlements. However, the Privy Council advised both were wrong and the money should return to those who had made contributions to the fund: half the company and half the employees, on resulting trust. This was in response, according to Lord Millett , "to the absence of any intention on his part to pass a beneficial interest to the recipient.

However, the Income Tax Act section 2 , [] applied a tax to a settlor of a trust for any income made out of trusts, if the settlor retained any interest whatsoever. Because Mr Vandervell did not say who the option was meant to be for, the House of Lords concluded the option was held on trust for him, and therefore he was taxed.

Revocable Trusts, 5th | Legal Solutions

It has also been said, that trusts which arise when one person gives property to another for a reason, but then the reason fails, as in Barclays Bank Ltd v Quistclose Investments Ltd [] are resulting in nature. However, Lord Millett in his judgment in Twinsectra Ltd v Yardley ' ', [] dissenting on the knowing receipt point, leading on the Quistclose point recategorised the trust which arises as an immediate express trust for the benefit of the transferor, albeit with a mandate upon the recipient to apply the assets for a purpose stated in the contract.


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Considerable disagreement exists about why resulting trusts arise, and also the circumstances in which they ought to, since it carries property rights rather than simply a personal remedy. The most prominent academic view is that resulting trust respond to unjust enrichment. The bank gave the council money under an interest rate swap agreement, but these agreements were found to be unlawful and ultra vires for councils to enter into by the House of Lords in in Hazell v Hammersmith and Fulham LBC [] partly because the transactions were speculative, and partly because councils were effectively exceeding their borrowing powers under the Local Government Act There was no question about whether the bank could recover the principal sum of its money, now that these agreements were void, but at the time the courts did not have jurisdiction to award compound interest rather than simple interest unless a claimant showed they were making a claim for property that they owned.

So, to get more interest back, the bank contended that when money was transferred under the ultra vires agreement, a resulting trust arose immediately in its favour, giving it a property right, and therefore a right to compound interest.