| Preface to the Seventh Edition |
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xix | |
| Acknowledgements |
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xxiii | |
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xxiv | |
| Useful Websites |
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xxv | |
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xxvi | |
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Table of Statutory Instruments |
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xliii | |
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xlv | |
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1 | (33) |
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1 | (2) |
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2 The Nature of a Trust in English Law |
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3 | (2) |
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3 The Trust's Versatility |
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5 | (1) |
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4 Manipulating Facets of Ownership through Trusts |
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5 | (8) |
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5 | (7) |
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12 | (1) |
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5 Equity's Rules for Enforcing Trusts and Supplementing Their Terms |
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13 | (2) |
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6 When Is a Trust Not a Trust? |
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15 | (1) |
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7 The Trust and `Competing' Legal Institutions |
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16 | (5) |
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17 | (1) |
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(b) Trusteeship and `Personal Representation' |
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18 | (1) |
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19 | (2) |
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21 | (6) |
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27 | (5) |
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10 Focus on Social Contexts Where Trusts Are Used |
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32 | (2) |
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2 The Evolution of the Private Express Trust |
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34 | (38) |
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34 | (1) |
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2 Medieval `Uses' of Land |
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35 | (5) |
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40 | (4) |
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4 The Emergence of the Modern Trust |
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44 | (6) |
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44 | (2) |
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(b) The Changes in Trusts Law and Practice |
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46 | (4) |
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5 Strict Settlements of Land and Married Women's Property Rights |
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50 | (6) |
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50 | (2) |
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(b) Strict Settlements and Trusts |
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52 | (2) |
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(c) Trusts for Married Women |
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54 | (2) |
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6 The Role of Trusts in English Law |
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56 | (7) |
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7 The Jurisdiction of Equity |
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63 | (3) |
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(a) Equity and the Common Law |
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63 | (2) |
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(b) The Judicature Acts 1873 and 1875 |
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65 | (1) |
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c Law and Equity: Fusion or Harmonisation? |
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66 | (6) |
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72 | (97) |
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72 | (5) |
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(a) The Centrality of Intention |
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72 | (2) |
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(b) Maxims of Equity and Trust Creation |
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74 | (3) |
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2 Creating a Trust: The Requirements Outlined |
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77 | (2) |
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(a) Capacity to Create a Trust |
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77 | (1) |
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(b) The `Three Certainties' Must Be Present |
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77 | (1) |
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(c) The Necessary Formalities Must Be Observed |
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78 | (1) |
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(d) The Trust Must Either Be Completely Constituted or Supported by Valuable Consideration |
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78 | (1) |
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(e) The Trust Must Not Infringe the Rules Relating to Perpetuity, Inalienability and Accumulation |
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79 | (1) |
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(f) The Trust Must Not Be Intended to Defraud Creditors or Otherwise Be Contrary to Public Policy |
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79 | (1) |
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79 | (41) |
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(a) Foreword: Creation of Trusts and Dealings in Equitable Interests |
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79 | (2) |
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(b) Creation of Trusts and Disposition of Equitable Interests: Inter Vivos Formalities |
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81 | (12) |
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(c) Complete Constitution of the Inter Vivos Trust |
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93 | (11) |
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(d) Creation of Trusts and Disposition of Equitable Interests: Testamentary Formalities |
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104 | (16) |
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4 Intention to Create a Binding Trust Obligation |
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120 | (35) |
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(a) Certainty of Intention |
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120 | (14) |
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(b) Certainty of Subject-Matter |
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134 | (7) |
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(c) Incomplete Constitution and the Role of Intention |
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141 | (13) |
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(d) Intention to Create a Binding Trust Obligation: Conclusion |
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154 | (1) |
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5 Trusts Creation and Resulting Trusts |
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155 | (5) |
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160 | (9) |
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160 | (1) |
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161 | (3) |
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164 | (3) |
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167 | (2) |
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4 Creating the Trust - II |
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169 | (63) |
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169 | (3) |
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172 | (7) |
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(a) Trusts and Powers Distinguished |
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172 | (3) |
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(b) Trusts and Powers Compared: Discretionary Trusts and Powers of Appointment |
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175 | (2) |
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(c) Trusts, Powers and `Trust Powers' |
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177 | (1) |
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178 | (1) |
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179 | (32) |
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(a) The Developing Law: Discretionary Trusts and Mere Powers |
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179 | (5) |
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(b) Mere Powers, Certainty of Objects and Re Gulbenkian's Settlement Trusts |
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184 | (3) |
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(c) Discretionary Trusts, Certainty of Objects and McPhail v Doulton |
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187 | (8) |
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(d) Certainty of Objects: Some Unresolved Problems |
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195 | (12) |
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207 | (4) |
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4 The Nature of a Beneficiary's Interest |
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211 | (8) |
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211 | (3) |
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(b) Equitable Ownership and the Discretionary Trust |
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214 | (1) |
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(c) `Cheese', the Nature of the Beneficiary's Interest and Discretionary Trusts |
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215 | (2) |
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(d) From `Equitable Interest' to `Equitable Right' and Beyond |
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217 | (2) |
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5 The Beneficiary Principle in Modern Trusts Law |
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219 | (13) |
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219 | (1) |
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(b) The Principle Established |
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219 | (4) |
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(c) The Principle Undermined? |
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223 | (7) |
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(d) A `Protector' Postscript |
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230 | (2) |
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5 Trusts and Public Policy |
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232 | (59) |
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232 | (4) |
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(a) Public Policy and Freedom of Disposition |
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233 | (1) |
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(b) Limitations in Gifts, Public Policy and Legal Logic |
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233 | (3) |
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2 Family Trusts and Creditors |
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236 | (36) |
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(a) Trusts, Insolvency and Public Policy |
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236 | (4) |
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240 | (18) |
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(c) Attempts to Safeguard Property from the Creditors of the Trust Founder |
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258 | (14) |
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3 Other Purposes Contrary to Public Policy |
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272 | (6) |
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272 | (1) |
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(b) Racial and Religious Discrimination |
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273 | (3) |
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(c) A Statutory Limitation on Freedom of Testation |
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276 | (1) |
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(d) Statutory Limitation on Dispositions to Defeat the Claims of a Spouse |
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277 | (1) |
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4 Trusts, Illegality, and Public Policy |
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278 | (6) |
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5 Public Policy and Perpetuities |
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284 | (7) |
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284 | (2) |
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286 | (2) |
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(c) The `Dead Hand' and the Rule against Perpetuities: A Rule Without a Reason? |
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288 | (3) |
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6 Flexibility in Relation to Beneficial Entitlement |
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291 | (52) |
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291 | (2) |
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2 Premature Termination of Trusts |
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293 | (4) |
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(a) The `Rule' in Saunders v Vautier |
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293 | (2) |
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(b) The Explanation for and Limits of the Rule |
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295 | (2) |
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297 | (29) |
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297 | (1) |
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(b) Pre-1958 Jurisdiction |
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298 | (5) |
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303 | (6) |
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(d) The Variation of Trusts Act 1958 |
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309 | (16) |
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325 | (1) |
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4 Flexibility in Relation to Capital Entitlement and the Power of Advancement |
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326 | (9) |
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326 | |
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(b) The Statutory Power of Advancement |
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326 | (3) |
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(c) `Advancement or Benefit' |
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329 | (6) |
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5 Flexibility in Relation to Income Entitlement and the Power of Maintenance |
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335 | (8) |
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335 | (1) |
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(b) The Statutory Power of Maintenance |
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336 | (5) |
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341 | (2) |
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7 An Introduction to Trustees and Trusteeship |
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343 | (41) |
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343 | (1) |
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2 Trusteeship: Moral Obligation and a Profit Motive |
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344 | (7) |
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(a) A Model of Trusteeship |
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344 | (2) |
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(b) The Influence of the Traditional Model |
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346 | (1) |
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(c) The Decline of Gratuitous Trusteeship |
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347 | (1) |
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(d) Present Demography of Trusteeship |
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348 | (2) |
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(e) Trustee Act 2000: A Summary |
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350 | (1) |
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3 Trusteeship and Trustees: An Introduction |
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351 | (4) |
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(a) Trustees: Capacity and Numbers |
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351 | (1) |
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(b) Special Types of Trustee |
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351 | (2) |
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(c) Special Forms of Trusteeship |
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353 | (2) |
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4 Trustees' Duties and Powers: An Outline |
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355 | (3) |
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355 | (1) |
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356 | (1) |
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(c) Duties and Powers: A Synthesis |
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357 | (1) |
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5 Conflict of Interest and Duty |
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358 | (3) |
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6 Trustees and Direct Remuneration |
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361 | (10) |
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361 | (2) |
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(b) Remuneration: The Rules |
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363 | (8) |
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7 Trusteeship and Indirect Remuneration |
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371 | (4) |
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371 | (4) |
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(b) Commission and Analogous Profits |
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375 | (1) |
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8 Dealings with the Trust Fund or Beneficiaries |
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375 | (7) |
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(a) Introduction: `Self-Dealing' and `Fair-Dealing' Rules |
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375 | (1) |
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(b) `Self-Dealing' Rule and the Purchase of Trust Property |
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376 | (4) |
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(c) `Fair-Dealing' Rule: Dealings with a Beneficiary Including Purchase of the Beneficial Interest |
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380 | (2) |
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9 Conflicts of Interest and Duty: The Wider Picture |
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382 | (2) |
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8 Aspects of the Management of Trusts |
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384 | (75) |
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384 | (1) |
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385 | (6) |
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(a) From the `Prudent Man' to a Statutory Duty of Care |
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385 | (2) |
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(b) A Statutory Duty of Care: Trustee Act 2000, s 1 |
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387 | (4) |
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391 | (41) |
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391 | (2) |
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(b) The Investment Marketplace |
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393 | (6) |
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(c) Commerce, the Courts and the Development of Trustee Investment Law |
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399 | (16) |
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(d) Powers of Investment and the Trustee Act 2000 |
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415 | (7) |
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(e) Investment Management, Risk and Liability for Loss |
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422 | (5) |
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(f) Investment and the Trustee Act 2000: A Panacea for All Ills? |
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427 | (5) |
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4 Impartiality and Investment |
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432 | (13) |
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432 | (2) |
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(b) The `Annual Harvest' and Some Problems of Capital and Income |
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434 | (2) |
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(c) The Scope of the Duty to Act Impartially |
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436 | (9) |
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445 | (14) |
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(a) Introduction: From Prohibition to the Trustee Act 2000 |
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445 | (2) |
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(b) Trustees' Powers of Delegation and the Trustee Act 2000 |
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447 | (12) |
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9 Trusteeship, Control and Breach of Trust |
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459 | (86) |
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459 | (3) |
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2 Appointment and Removal of Trustees |
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462 | (9) |
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(a) The Role of the Settlor |
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462 | (1) |
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(b) Appointment of New or Additional Trustees |
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463 | (5) |
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(c) Retirement and Removal of Trustees |
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468 | (3) |
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3 Controlling Trustees' Discretion |
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471 | (29) |
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(a) Trusts, Powers and Discretions |
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471 | (2) |
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(b) Exercising the Discretion |
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473 | (5) |
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(c) Setting Aside Decisions |
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478 | (8) |
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(d) Beneficiaries' Access to Information |
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486 | (10) |
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(e) Access to Information under the Data Protection Act 2018 |
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496 | (1) |
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496 | (4) |
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500 | (43) |
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(a) Introduction to Trustee Liability |
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500 | (2) |
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(b) Breach of Trust and Compensation Claims: A Classification |
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502 | (3) |
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(c) The Measure of Liability |
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505 | (18) |
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(d) Liability of Trustees: Personal or Collective? |
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523 | (2) |
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525 | (12) |
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537 | (6) |
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543 | (2) |
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(a) Tracing: An Introduction |
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543 | (2) |
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10 Implied Trusts and the Family Home |
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545 | (61) |
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545 | (2) |
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547 | (3) |
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(a) Express and Implied Trusts |
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547 | (2) |
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(b) Resulting and Constructive Trusts |
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549 | (1) |
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3 Implied Trusts and Family Property Law |
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550 | (7) |
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550 | (1) |
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(b) Statutory Reform: The Married Women's Property Act 1882 |
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551 | (1) |
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(c) Section 17: Signs of Community? |
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551 | (1) |
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(d) The House of Lords' Rules: Pettitt and Gissing |
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552 | (1) |
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553 | (1) |
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(f) Matrimonial Property Law and the Ongoing Marriage |
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554 | (1) |
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555 | (1) |
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(h) Other Family Relationships |
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556 | (1) |
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4 The Family Home in Joint Legal Ownership |
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557 | (11) |
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557 | (3) |
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(b) No Express Declarations |
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560 | (8) |
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5 The Family Home in Sole Legal Ownership |
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568 | (19) |
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569 | (14) |
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583 | (1) |
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584 | (3) |
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587 | (5) |
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592 | (14) |
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(a) Unjust Enrichment: Canada |
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592 | (4) |
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(b) Unconscionability: Australia |
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596 | (3) |
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(c) Reasonable Expectations: New Zealand |
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599 | (2) |
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(d) Contributions: Sharing Homes |
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601 | (1) |
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(e) A Reallocative Scheme |
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602 | (3) |
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605 | (1) |
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11 Trusts in Commerce - 1: Commerce and Equitable Remedies |
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606 | (90) |
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606 | (4) |
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610 | (25) |
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(a) Tracing: An Introduction |
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610 | (4) |
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(b) Tracing and Claiming at Common Law |
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614 | (4) |
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(c) Tracing and Claiming in Equity |
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618 | (8) |
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(d) The Limits to Equitable Tracing and Equitable Proprietary Claims |
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626 | (7) |
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(e) The Personal Claim in Equity |
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633 | (2) |
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635 | (3) |
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4 `Strangers', Equitable Personal Liability, `Constructive Trusteeship' and Commercial Considerations |
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638 | (31) |
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(a) Introduction: The Two Categories of `Constructive Trusteeship' or `Equitable Personal Liability' |
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638 | (4) |
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(b) Recipient Liability and `Knowing Receipt' |
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642 | (14) |
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(c) Accessory Liability and `Dishonest Assistance' |
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656 | (13) |
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669 | (17) |
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669 | (1) |
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669 | (2) |
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(c) `Holding the Ring': Interim Injunctions |
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671 | (6) |
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(d) Securing the Assets: Freezing Orders and Search Orders |
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677 | (9) |
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686 | (3) |
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689 | (7) |
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689 | (1) |
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(b) The Jurisdictional Question |
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690 | (1) |
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(c) Exercising the Discretion |
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690 | (2) |
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(d) The Measure of Damages |
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692 | (1) |
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(e) Losses, Gains and a Blurring of Boundaries |
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693 | (3) |
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12 Trusts in Commerce - II: Commerce, Credit and the Trust |
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696 | (41) |
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696 | (2) |
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2 Consumer Prepayments and the Trust |
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698 | (7) |
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(a) The Prepayment Problem |
|
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698 | (1) |
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698 | (6) |
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704 | (1) |
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3 Loans, Security and the Trust |
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705 | (15) |
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(a) Protecting the Lender's Interest |
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705 | (1) |
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706 | (3) |
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(c) The Enforceability Puzzle: A `New Model' Commercial Trust? |
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709 | (3) |
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(d) Alternative Explanations |
|
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712 | (7) |
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(e) Quistclose and Remedial Constructive Trusts |
|
|
719 | (1) |
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4 Reservation of Title and the Equitable Tracing Doctrine |
|
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720 | (17) |
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(a) Unsecured Creditors, Freedom of Contract and Reservation of Title Clauses |
|
|
720 | (2) |
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(b) The Commercial Framework |
|
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722 | (2) |
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(c) Romalpa, Unmixed Goods and the Requirements for an Equitable Tracing Claim |
|
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724 | (5) |
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(d) Reservation of Title, Mixing of Goods and the Limits of Equitable Tracing |
|
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729 | (5) |
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734 | (3) |
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13 Trusts in Commerce - III: Fiduciary Relationships, Commerce and the Trust |
|
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737 | (62) |
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737 | (2) |
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2 Fiduciary Relationships and Breach of Fiduciary Duty |
|
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739 | (51) |
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(a) Identifying the `Fiduciary Relationship' |
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740 | (11) |
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(b) Remedial Constructive Trusts |
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751 | (7) |
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(c) Fiduciaries, Breach of Confidence and Undue Influence |
|
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758 | (4) |
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(d) Defining the Content of Fiduciary Duties: Conflicts of Interest and the `Secret Profits' Rule |
|
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762 | (21) |
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(e) Fiduciary Duties: Some Policy Considerations |
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783 | (7) |
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790 | (7) |
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(a) The Problem of Bribes |
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791 | (5) |
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(b) Equitable Compensation |
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796 | (1) |
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797 | (2) |
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14 Trust, Contract, and Unincorporated Associations |
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799 | (28) |
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1 Trusts within the Rules of an Association |
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799 | (2) |
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2 Bequests to an Association |
|
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801 | (13) |
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(a) The Problems Outlined |
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801 | (2) |
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(b) The Relevant Authorities |
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803 | (10) |
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813 | (1) |
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3 Destination of Assets on the Dissolution of an Unincorporated Association |
|
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814 | (13) |
|
15 An Introduction to the Law of Charity |
|
|
827 | (56) |
|
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827 | (6) |
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2 Charity, the State and Charity Law: A Background |
|
|
833 | (10) |
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(a) The Late Middle Ages to the Late Eighteenth Century |
|
|
833 | (2) |
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(b) From the Industrial Revolution to the Emerging Welfare State |
|
|
835 | (8) |
|
3 Charity in a Welfare State |
|
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843 | (5) |
|
(a) New Roles for Philanthropic Organisations |
|
|
843 | (5) |
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4 `Privileges' of Charitable Status |
|
|
848 | (17) |
|
(a) Privileges of Charitable Trusts under Trusts Law |
|
|
849 | (12) |
|
(b) The Fiscal Privileges of Charities |
|
|
861 | (3) |
|
(c) Charities and Discrimination |
|
|
864 | (1) |
|
5 The Regulatory Framework |
|
|
865 | (7) |
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|
865 | (2) |
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(b) The Charity Commission |
|
|
867 | (1) |
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|
868 | (1) |
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(d) Trusteeship and Control |
|
|
869 | (3) |
|
6 Matching Charitable Purposes to Social Needs |
|
|
872 | (11) |
|
|
|
872 | (1) |
|
(b) Coordination of Activities |
|
|
873 | (1) |
|
(c) Modernisation under the Cy-Pres Doctrine |
|
|
874 | (6) |
|
|
|
880 | (1) |
|
|
|
881 | (2) |
|
16 The Legal Definition of `Charity' |
|
|
883 | (74) |
|
|
|
883 | (8) |
|
|
|
883 | (2) |
|
(b) The Charities Acts 2006 and 2011 |
|
|
885 | (2) |
|
|
|
887 | (4) |
|
2 Procedure Governing Registration as a Charity |
|
|
891 | (3) |
|
3 The Categories of Charity |
|
|
894 | (25) |
|
(a) Prevention and Relief of Poverty |
|
|
894 | (3) |
|
(b) Advancement of Education |
|
|
897 | (4) |
|
(c) Advancement of Religion |
|
|
901 | (9) |
|
(d) Advancement of Health or the Saving of Lives |
|
|
910 | (1) |
|
(e) Advancement of Citizenship or Community Development |
|
|
911 | (1) |
|
(f) Advancement of the Arts, Culture, Heritage or Science |
|
|
912 | (1) |
|
(g) Advancement of Amateur Sport |
|
|
913 | (1) |
|
(h) Advancement of Human Rights, Conflict Resolution or Reconciliation, or the Promotion of Religious or Racial Harmony, or Equality and Diversity |
|
|
914 | (1) |
|
(i) Advancement of Environmental Protection or Improvement |
|
|
915 | (1) |
|
(j) Relief of Those in Need by Reason of Youth, Age, 111-Health, Disability, Financial Hardship, or Other Disadvantage |
|
|
916 | (1) |
|
(k) Advancement of Animal Welfare |
|
|
917 | (1) |
|
(l) Promotion of the Efficiency of the Armed Forces of the Crown, or of the Efficiency of the Police, Fire and Rescue Services or Ambulance Services |
|
|
918 | (1) |
|
4 Recognising New Charitable Purposes under CA 2011, s 3(l)(m) |
|
|
919 | (4) |
|
5 State-Charity Relations: A Comment |
|
|
923 | (1) |
|
|
|
924 | (3) |
|
7 Charities: An International Postscript |
|
|
927 | (1) |
|
|
|
927 | (16) |
|
|
|
927 | (1) |
|
(b) A `Personal Nexus Test' and the Advancement of Education |
|
|
928 | (2) |
|
(c) A Relief of Poverty Anomaly: `Poor Relatives' and `Poor Employees' |
|
|
930 | (2) |
|
(d) A Flexible Approach and a `Question of Degree Test' |
|
|
932 | (5) |
|
(e) A `Class within a Class' Test |
|
|
937 | (1) |
|
(f) Access for the Poor, Charging Fees and Distributing Profits |
|
|
938 | (4) |
|
(g) Conclusion: Public Benefit, `Section of the Public', and Altruism |
|
|
942 | (1) |
|
9 Charities and Political Activity |
|
|
943 | (10) |
|
(a) The Scope of the Principle |
|
|
943 | (3) |
|
(b) The Principle in Practice |
|
|
946 | (3) |
|
(c) The Principle Assessed |
|
|
949 | (4) |
|
10 Reform and the Definition of `Charity' |
|
|
953 | (4) |
|
17 Trusts - An International Dimension |
|
|
957 | (25) |
|
|
|
957 | (3) |
|
2 Offshore Financial Centres |
|
|
960 | (2) |
|
|
|
960 | (1) |
|
(b) International Finance and Offshore Tax Havens |
|
|
960 | (2) |
|
|
|
962 | (6) |
|
(a) Tax Planning, Trusts and the Vestey Saga |
|
|
962 | (3) |
|
(b) Offshore Trusts and UK Taxation: Legislative Responses |
|
|
965 | (1) |
|
(c) Offshore Trusts: The Big Picture |
|
|
966 | (2) |
|
4 Conflict of Laws and the Hague Trusts Convention |
|
|
968 | (3) |
|
|
|
968 | (1) |
|
(b) The Hague Trusts Convention: Key Legal Issues |
|
|
969 | (2) |
|
|
|
971 | (4) |
|
|
|
971 | (1) |
|
(b) Italy: Trusts Interni |
|
|
972 | (2) |
|
|
|
974 | (1) |
|
|
|
975 | (2) |
|
|
|
975 | (1) |
|
|
|
976 | (1) |
|
(c) A Directive on Protected Funds |
|
|
976 | (1) |
|
|
|
977 | (5) |
| Index |
|
982 | |
