Equity and Trusts

The module provides an appreciation of the controversies and difficulties that can be encountered in establishing a valid trust, the role of trustees and equitable remedies.

Topics covered

• Definition and distinction from other legal concepts. Classification of trusts. Equitable rights and remedies.
• Express private trusts. Statutory requirements for creation. Secret trusts. Incompletely constituted trusts. Certainties of a trust. Protective trusts. Discretionary trusts. Purpose trusts.
• Trustees’ powers and duties. Investment of trust funds. Maintenance and advancement. Accumulation of income. Delegation of trustees’ powers and discretions.
• Charitable trusts. Definition. Distinctions from private trusts. Classification of charitable trusts. Doctrine of cy près.
• Resulting trusts: Voluntary conveyances. Purchase in the name of another. Failed trusts. Presumptions of resulting trusts and advancement. Why resulting trusts arise?
• Constructive trusts. General nature. Constructive trusts of wrongful enrichment and unjust enrichment. Constructive trusts arising for other reasons, including the contractual vendor as a constructive trustee. Comparison with proprietary estoppel.
• The appointment, retirement and removal of trustees.
• Variation of trusts.
• Remedies for breach of trust. Trustees’ liability to account. Equitable compensation. Exemption clauses. Trustees’ right of indemnity or contribution. Dishonest assistance. Knowing receipt.
• Claims based on tracing. Tracing rules. Trusts, liens, and subrogation.

Learning outcomes

If you complete the module successfully you should be able to:

• Contextualise the modern law of trusts within its historical origins and the role of equity in its enforcement.
• Classify types of trusts and identify their main distinctive features and purposes.
• Identify and apply relevant statutory frameworks to the law of trusts.
• Explain how breaches of trusts arise and identify and evaluate appropriate remedies
• Explore key issues in judicial decision making, including ethical and societal considerations, and demonstrate knowledge of the wider academic debates.
• Apply knowledge to practical problems and theoretical enquiries demonstrating the ability to think critically about the issues arising.
• Summarise key arguments advanced in judicial opinions and academic writings.
• Distinguish lines of argument and judge relative strengths and weaknesses.
• Use appropriate legal terminologies specific to the law of Equity and Trusts.

Assessment

4hr 15 mins unseen examination

Essential reading

• Penner, J.E. The law of trusts. (Oxford: Oxford University Press, 2022) 12th edition [ISBN 9780192855008].