kasperbauer v griffith case summarykasperbauer v griffith case summary

Williams and a neighbor, Griffith, investigated and concluded it was an attempted theft. A clear distinction between the two is made in this case, and equity was not used to insist on a trust here. 41 0 obj <>stream As articulated earlier in this piece, the difficulty faced in the creation of secret trusts that this permits this section of the Wills Act 1837 to be used as an engine of fraud against the testator as the trustee may claim the property for themselves in fully secret trusts. Common circumstances giving rise to constructive trusts: Constructive trusts are the major remedy for a breach of fiduciary duty these constructive trusts are institutional, See the case of Keech v Sandford (1726), for example. The testator declared in front of his family that he would bequeath his house and sum of his pension benefit to his wife on the condition that the money would be used to discharge the mortgage on the house. What is most significant here was that it was clear that they knew of the existence of their obligation but failed to physically object. No. P was a 50 year old woman who resided at a specialist hospital on a long term care ward. As wills are, by nature, public documents open to scrutiny, the concealment of identity that a secret trust provides is vital for those desiring a degree of privacy in the final disposal of their estate. When everyone had gone, Gorney entered the car, again setting off the alarm and arousing the neighborhood. Oxbridge Notes uses cookies for login, tax evidence, digital piracy prevention, business intelligence, and advertising purposes, as explained in our As Hudson notes the purpose of equity is to introduce fairness in circumstances in which statute might permit unfairness[xlvi] thus is not surprising that the Courts have applied the principle to secret trusts in this way. Snowden [1979] 2 WLR 654, Kasperbauer v Griffiths [2000] WTLR 333 (CA) (2) Communication of the terms of the secre t trust to B . Having detailed the types of secret trust and outlined the formalities required for them to be valid, this essay will now turn to the enforcement of secret and half secret trusts using the equitable principle that statute will not be an instrument of fraud. However, Alastair Hudson observes that there is alternative authority[xv] from Romer J in Re Gardner. [lviii] Garry Watt, Todd & Watts Cases & Materials on Equity and Trusts, (9th edn, OUP, 2013) 480. endstream endobj The communication can take place either before or after the will is drafted, as established in Moss v Cooper.[x]. However, it is not necessary the parties be beneficiairies of the other partys will or that they should leave property to the same person(s): they just need to agree where property should go, Following the death of the first party, the second party holds the property on a constructive - Olins v Walters, There must be an agreement between the parties not to revoke their wills i.e. These trusts are imposed over property that is only ascertained upon the administration of the estate and are subject to the wills rules on abatement and ademption (essentially the potential failure of the gift) like any other. First in Kasperbauer v Griffiths [2000] WTLR 333 the Court of Appeal had summarised the law in this area and pointed out that the question was whether the testator intended a trust or a mere moral or family obligation.. [lvi] Meryl Thomas The longer you look at a [will], the more abstract it becomes construction and secret trusts: Rawstron and Pearce v Freud (2014) Tru. It is sufficient that a restraint of trade or monopoly results as the consequence of the defendants' conduct or business arrangements. This chapter discusses secret trusts. The court terminated the Trust and ordered that approximately $1 million in Trust assets be distributed to appellants. Copyright 2006 - 2023 Law Business Research. "Fraud theory" - we enforce them otherwise it would vs. the equitable theory that you cannot use statute for fraud - but unclear who this 'fraud' is being committed against. [i] Gary Watt Trusts and Equity (4th edn, OUP, 2010) 180. These requirements are intended to ensure that wills constitute a clear record of how the estate should be distributed after the testators death. Equally, it has not been proven that the property was to be passed onto the intended beneficiary, so the rules of intestacy apply and the property falls back into the testators estate. Pallant v Morgan [1953]: the defendant and the plaintiff (i.e. She had no children and, on her death, left her whole estate to her friend, Mr Ison. This will involve a brief explanation of the equitable principles before turning to their application to secret trusts. He argues this theory relies upon the establishing that secret trusts, to fall out of the remit of the Wills Act, are not actually testamentary dispositions at all, thus the Acts formalities need not apply, which is factually untrue. Accordingly, no trust was created and he found for the defendant Mr Ison (Titcombe v Ison, unreported, ChD, 28 January 2021). Intention by testator, or person prepared to die intestate, to create trust binding inheritor of their property. If by mistake, the claimant conveys title to the wrong person, or the wrong property is conveyed to the intended person, or the claimant is otherwise induced to act by reason of mistake, the transfer can be set aside. students are currently browsing our notes. notes written by Cambridge/Bpp/College Of Law students is The legatee is thus not bound to pass the property on to the intended beneficiary. Sometime after this, the testator made a will differing from this earlier declaration which left everything to his wife, to the exclusion of his children. Top Tips to Score 70 and above in Online Law Exams. Perhaps the most difficult issue is where the legal owner has responsibility for and meets all the mortgage payments, but is only in a position to do so because the other partner is meeting other household expenses, such as utility bills, maintenance etc. Secret trusts therefore arise where a testator decides to leave ostensible legacies to someone whom the testator really wants to act as trustee for an intended but undisclosed beneficiary of that legacy provided always that the obligation is a trust obligation and not merely a moral obligation: Under the general principles of constructive trusts, it would be unconscionable for the fraudster to retain property acquired by fraud (, In Re Ciro Citterio Menswear, land was acquired by 2 directors, by money was loaned to the company in breach of the Companies Act 1985. Following the death of the first party, the second party holds the property on a constructive, FHR European Ventures LLP v Cedar Capital Partners LLC [2014], Chase Manhattan v Israel-British Bank [1981], Westdeutsche Landesbank v Islington [1996], Attorney General of Hong Kong v Reid [1994], Sinclair Investments v Versailles Trade Finance Ltd [2011], Thus, a person who steal property will have dealt unconscionably with it (Westdeutshe Landesbank); a person who receives a bribe in the conduct of a fiduciary office will have dealt unconscionably with the property representing that bribe (AG for HK v Reid 1994); a person who takes property by means of fraud will have dealt unconscionably with it (Westdeutshe Landesbank) the defendant will be a constructive trustee in all these cases, Institutional constructive trusts arise at the moment the conduct occurs, on the facts, Remedial constructive trusts arise at the date of the courts judgment, He says a remedial constructive trust is different as it lies in the discretion of the court, E.g. There are three requirements for a secret trust: (1) intention to create the trust; (2) communication of the trust to the trustee (which is subject to slightly different rules on timing depending on whether the trust is half-secret or fully secret) and (3) acceptance of the trust by the trustee. Each of these will be discussed in turn. The defendants attempted a robbery with an imitation gun and a pick-axe handle. Secret trusts are testamentary dispositions as the testator can revoke the trust at any time before death by communicating with the secret trustee, by destroying the will or creating a new one. In Re Keen[xxxiii], the testator, Keen, gave a sealed envelope to the intended trustee and they knew that the envelope contained the name of a woman to whom Keen was not married even though he did not open it until after Keens death. 5. The defendant approached a petrol station manned by a 50 year old male. Considering the relationship between the parties / degree of moral culpability, / nature and gravity of the offence, / intention of the deceased, / size and value of the estate, / financial position of the offender, and / moral claims and wishes of those who would be entitled to benefit on the application of the forfeiture rule. 3 Certainties Formalities Constitution Notes, Certainties, Formalities And Constitution Notes, Certainties Formalities Constitution Flow Chart Notes, Constructive Trusts Of Property And Constructive Trusts Of The Home Notes, Income (S 32) And Capital (S 31) Summary Notes, Secret Trusts, Purpose Trusts And Unincorporated Associations Notes, Trustees' Powers, Maintenance & Advancement And Variation Notes. However, the court was not willing to disregard the importance of the will in this case; it will not contravene statutory principle in every situation, whereby the trust terms are not certain. The equitable principles address a wide range of situations, from providing guidance on equitys relationship to the common law in equity follows the law, the conduct expected of claimants in he who comes to equity must come with clean hands, as well as the exact operations of equity, in equity looks to substance over form. Part of the evidence was a solicitors note which suggested that that she meant to leave legacies to her relatives and that her brother was to divide up the remainder of the estate. In Titcombe v Ison there was no doubt that the testator had expressed informal wishes regarding her jewellery. In that case the Court was dealing with a trust allegedly created by a letter giving directions regarding the testators property in which the testator had requested that his friend deal with the property as the testator would have done had he been alive. Kasperbauer v Griffith 1997 EWCA Civ 2785. . you don't have to be deceitful to qualify as a trustee de son tort, This is where a trustee disposes of trust property in breach of trust and someone (the defendant) dishonestly assists in that, So the defendant here has not received trust property - if he had done, that would be knowing receipt, As the defendant has no received trust property a constructive trust is not possible and only personal remedies are available, If someone receives property knowing it was conveyed in breach of trust, they be liable to return the property and they may also be personally liable to compensate for any loss caused. One new video every week (I accept requests and reply to everything!). Application of the principle to secret trusts in good conscience, Undoubtedly, this principle is of great importance to the enforcement of secret and half secret trusts, and as seen above, it had been used by the courts to reach a fairer decision than statutory or common law formalities would allow. This rule has subsequently been followed in Re Bateman WT. Broadly worded, and flexible in their application, their unique character is described somewhat expressively by Simon Gardner, who writes that the principles possess a pecularliarly Delphic quality, wrapped as they are in metaphor, grandly unqualified, and acknowledging no authority but transcendent wisdom.[xxxiv]. The claimant suffered respiratory arrest. To use the Law of Property Act 1925 to defeat Ms Bannisters beneficial interest would be a fraud. In the case of Re Stead,[vi] there were two trustees, but the testator only informed one of their intentions. The creation and validity of fully secret trusts. 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