Constitution of Express Trusts/UK Law

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� PAGE * MERGEFORMAT �1�

Property 2

Constitution is the last of the formalities that the law requires to create an effective and enforceable trust. Failure to constitute a trust will mean that no gift or trust is applicable; and the law that relates to perfect constituted gifts and trusts will not be appropriate. Moreover, the axiom of equity will intervene: "equity will not perfect an imperfect gift". The state of equity at the start of 21st century has changed significantly through a number of noteworthy cases that are relevant to Pennington v Waine (2002) 4 All E.R. 215.�

Milroy v Lord (1862)� the donor in this case used an inappropriate document to pass the interest to the relevant donee, court's decision was that this could not be an effective transfer of shares since the document was wrong and did not comply with the requirements of the bank to constitute the transfer. Milroy is the first case that presents the three different ways that a voluntary settlement may occur. First, by declaration of self as a trustee, where there is no need to transfer the legal title. In case that the land involved is not registered; the transfer of the relevant legal title to trustees must be transferred by deed and comply with S.52 LPA 1925. In registered land the trustees will become legal owners ones the transfer is also registered and comply with S. 27 LRA 2002. The second available way is by an outright gift and, the third way is by appointing someone else a trustee where the transfer of the legal title is necessary. Another particularly crucial point from this case is that it clarifies that if a failure occurs by one of the above ways then the settlement will not succeed through the other methods. The settlement that will occur depends from the nature of property that the donor wishes to transfer. Milroy v Lord (1862), Re Fry (1946), Jones v Lock (1865) and finally Richards v Delbridge (1874)� all these cases although are four different types of property that needed transfer yet they have one common ingredient this of the intention of the transferor to make a valid settlement and finally convey the property. In case of absence of the intention from the transferor, equity will again intervene and raise the point that: "equity will not assist a volunteer". The intention of the settlor and the proof that has done all that is necessary and under his control to be done are the cornerstone for the interpretation of an effective transfer until that point in law, Mascall v Mascall (1989).

In the case of Re Rose (1949); which was further; approved by the Court of Appeal decision in Re Rose (1952)� similar facts apply; the strict rules were more relaxed since Milroy v Lord. In Re Rose, the donor executed a share transfer form and gave it back to the donee along with the appropriate certificate. The legal title could not pass to the latter until he registered the transfer to the company. The court held that it was an effective transfer since the donor had done everything necessary by law to do. Equity had at that point the power to step in and recognize the transfer as effective. The court confirmed that the cases of Milroy v Lord and Re Rose could have the same approach. Equity finally could intervene, perfect an imperfectly constituted gift if part of the settlor had fulfilled the relevant obligations, and settle the transaction by his own intention binding upon him.

T. Choithram International SA v Pagarani Privy Council (2001)� is the third case upon which the case of Pennington v Waine was largely decided. Mr. Pagarani was an extremely wealthy man who decided after diagnosed with cancer in 2001 to live all his wealth to a charitable foundation named after him. In 17 February 2001, Mr. Pagarani signed the trust deed of the foundation and afterwards, although not clear, stated that he gives all his wealth to the trust. Mr. Pagarani had made also a will that stated that all his wealth should go to the relevant foundation. The...
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