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Law Second Year > Property Law - Mutual Wills and Secret Trusts > Flashcards

Property Law - Mutual Wills and Secret Trusts Flashcards

1
Q

AG for Hong Kong v Reid general

A

Bribe to act contrary to C’s interests

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2
Q

How does Re Cleaver explain MW?

A

Inconsistent dealings with property forces equity to intervene

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3
Q

What does intention as a requirement for ST require regard to?

A

Three certainties

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4
Q

Why can’t the fraud theory explain HST?

A

B never keeps the property - it is always either an RT, C or successful HST

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5
Q

Moss v Cooper on method of acceptance

A

Words or silence

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6
Q

What judge in what case distinguished between subsequent and prior promises on JT property in FSTs?

A

LJ Fairwell in Re Stead

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7
Q

What power does B have under a MW?

A

Bare power

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8
Q

What judge in what case refused to enforce MW without compliance with LP(MP)A 1989 s.2?

A

David Donaldson QC in Healey v Brown

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9
Q

Healey v Brown general

A

No compliance with LP(MP)A 1989 s.2

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10
Q

LP(MP)A 1989 s.2

A

Requires signed writing for a contract of land

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11
Q

What case required ‘Irrevocability of the mutual intentions’ for firm agreement of MW?

A

Re Goodchild

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12
Q

What case gives the effect of non-compliance with HST requirements?

A

Re Keen

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13
Q

What is the ‘fraud’ theory of ST?

A

Statute is not an instrument of fraud

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14
Q

Why does Hackney not think HST should exist at all?

A

Unconscionability is dealt with through RT

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15
Q

Re Boyes gives what two categories for non-compliance with FSTs?

A

If B is ignorant of the trust or ignorant of the terms

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16
Q

What case suggested that if a MW fails, an ST may operate instead?

A

Healey v Brown

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17
Q

Two cases showing possible subject matter of a MW?

A

Re Hagger; Re Dale

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18
Q

Re Maddock

A

FST fails if secret T dies

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19
Q

Outline to 4, detail to 5th

A

Blackwell v Blackwell

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20
Q

Olins v Walters general

A

Saunders

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21
Q

Stephenson v Barclays Bank

A

B AND C can exercise Saunders

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22
Q

What is the doctrine of incorporation?

A

Will can refer to already existing written instrument, and it will be incorporated

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23
Q

Why does communication of a fully secret trust need to be before death of A?

A

Property moves automatically to B upon A’s death so needs to have agreed prior to receipt

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24
Q

How can Re Gardner (No.2) be criticised?

A

C’s right only arises when trust is constituted by B’s receipt, which doesn’t happen until A dies

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25
Q

Life interest and remainder man

A

Re Hagger

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26
Q

What judge in Re Gardner (No.2) suggested that in a HST, if secret B dies property would go to C’s estate?

A

Romer J

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27
Q

Walgrave v Tebbs on method of acceptance

A

Express or implied

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28
Q

3 requirements for STs in Kasperbauer v Griffith

A

Intention, communication and acceptance

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29
Q

If B revokes his MW, will takes effect but D holds on trust for C

A

Re Heys

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30
Q

If the subject matter of a MW is unclear, what can the parties do?

A

Apply to court

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31
Q

Irish case on HST communication

A

Re Browne

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32
Q

Re Dale on subject matter of trust specifically

A

MW can apply to ANY property promised to pass on, and no need to receive property at all

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33
Q

Blackwell v Blackwell general

A

Outline to 4, detail to 5th

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34
Q

Polly Peck v Nadir general

A

interim injunction

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35
Q

Moss v Cooper general

A

Agents

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36
Q

No compliance with LP(MP)A 1989 s.2

A

Healey v Brown

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37
Q

Walgrave v Tebbs general

A

Instructions after death

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38
Q

Re Newey general

A

Mirroring

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39
Q

What case gives communication requirements of fully secret trusts?

A

Walgrave v Tebbs

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40
Q

Rickett on nature of MW trust

A

Remedial CT

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41
Q

Three possible ways to justify secret wills

A

Fraud, dehors the will and CT

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42
Q

What is the constitutional question about STs?

A

Is it valid to read in an exception to a statutory instrument?

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43
Q

What case gives the assumption that an individual does not relinquish the freedom to make testamentary dispositions?

A

Charles v Fraser

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44
Q

Liew on nature of MW

A

Qualified and absolute interest analysis, focusing either on advantage-based aim or loss-based aim

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45
Q

Obligation of MW when A dies

A

Thomas and Agnes v Carvel

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46
Q

Mirroring of wills unnecessary for MW

A

Re Newey

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47
Q

Birmingham v Renfrew judgment

A

CT when A dies, but only crystallises when B dies OR when B makes an improper disposition

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48
Q

Why is it suggested LP(MP)A 1989 s.2 would apply to MW?

A

MW is considered a ‘contract’

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49
Q

What case suggested that if there is sufficient notice of MW revocation before A’s death, doctrine may not even apply?

A

Lewis v Cotton

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50
Q

What academic suggested the outcome if B makes an improper disposition?

A

Liew

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51
Q

What did Mummery LJ in Re Walters say the MW doctrine was about?

A

Response to prospect of unconscionable conduct

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52
Q

FST fails if secret T dies

A

Re Maddock

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53
Q

What judge in what case said that mutual wills continue ‘to be a source of contention for the families of those who have invoked’ the doctrine?

A

Mummery LJ in Olins v Walters

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54
Q

What is the dehors the will theory?

A

Sts are outside the will so s.9 WA has no application

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55
Q

What is the basic starting point for a valid testamentary disposition?

A

S.9 Wills Act 1837

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56
Q

Why is a high degree of certainty required for MW?

A

B binding himself DESPITE possibility of change in circumstances

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57
Q

Refraining from making a will

A

Strickland v Aldridge

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58
Q

Why does the Re Stead rule exist?

A

To block C from profiting from B’s fraud

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59
Q

Two cases on revocation of MW agreement

A

Re Heys; Lewis v Cotton

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60
Q

Why does the CT theory of Sts completely circumvent WA?

A

Not testamentary dispositions at all

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61
Q

Re Newey judgment

A

Mirroring of wills unnecessary for MW

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62
Q

Why is it an issue for ST justification that you can’t declare an immediate trust of future property?

A

ST can bind after-acquired property

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63
Q

To C and D equally

A

Re Dale

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64
Q

‘Takes absolutely’

A

Re Rees

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65
Q

Re Keen general

A

Sealed envelope

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66
Q

What is the general rule if communication of an FST isn’t communicated to all?

A

Only person who is told is bound

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67
Q

Lewis v Cotton

A

If revocation attempted before A’s death, maybe BoC, but if sufficient notice then MW may not even apply

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68
Q

Name at least two reasons why agreements might be made outside the will?

A

Wills are public documents, A unsure what he is going to do with the property or A unaware of s.9 Wills Act 1837

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69
Q

What case shows agents can be used to communicate a fully secret trust?

A

Moss v Cooper

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70
Q

What is the CT theory of ST?

A

Prevents particular form of unconscionable conduct in B acquiring property meant for another

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71
Q

Walgrave v Tebbs judgment

A

Communication needs to be before, during or after execution of will but BEFORE testator dies

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72
Q

In the Goods of Smart general

A

Probate doctrine of incorporation

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73
Q

Two cases on terms of HST conflicting with will

A

Re Rees and Re Keen

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74
Q

What review started in later 2015 with the suggestion of abolishing MW doctrine

A

Law Commission 2015

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75
Q

Re Stead general

A

JT

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76
Q

Re Rees general

A

‘Takes absolutely’

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77
Q

What are both secret trusts and mutual wills loosely based on?

A

Agreement

78
Q

Walgrave v Tebbs on content of communication for fully secret trust

A

Intention to create an ST

79
Q

Polly Peck v Nadir judgment

A

For CT, C can virtually get an interim injunction as of right before trial

80
Q

What case showed that the question of permissibility for use of property in B’s lifetime is fact specific?

A

Re Walters

81
Q

Name at least two reasons why CTs are difficult

A

Used as a miscellaneous category, disputes over categorisation and lack of a coherent theme

82
Q

Re Colin Cooper general

A

£5000 then £5000

83
Q

What case rejected Hackney’s view on HSTs as being dealt with through unconscionability?

A

Blackwell v Blackwell

84
Q

Moss v Cooper on reliance

A

Will unrevoked after B’s promise justified CT

85
Q

Blackwell v Blackwell on communication of HST

A

Needs to be before or at time of execution of the will

86
Q

Blackwell v Blackwell on death of secret T

A

suggested a court would interfere to prevent an FST failing if a secret T dies

87
Q

£5000 then £5000

A

Re Colin Cooper

88
Q

Strickland v Aldridge judgment

A

Refraining from making a will can show A’s reliance of B’s acceptance

89
Q

What is there no case on when considering death of secret beneficiary?

A

FST

90
Q

What case required ‘Clear and satisfactory evidence of a contract’ for MW?

A

Re Walters

91
Q

What case suggested a court would interfere to prevent an FST failing if a secret T dies?

A

Blackwell v Blackwell

92
Q

Re Browne general

A

Irish case on HST communication

93
Q

Re Walters general

A

‘Clear and satisfactory evidence of a contract’

94
Q

Olins v Walters judgment

A

C cannot exercise Saunders rights but can ask for a declaration that the agreement amounts to a MW

95
Q

Re Gardon on HST communication

A

If only made to 1 T before execution, all are bound

96
Q

‘Irrevocability of the mutual intentions’

A

Re Goodchild

97
Q

What happens, according to Re Stead, if property left on JT but communication made after will made/left unrevoked?

A

Bs share is severed in JT

98
Q

What case showed C under MW cannot exercise Saunders rights?

A

Olins v Walters

99
Q

Re Goodchild general’

A

‘Irrevocability of the mutual intentions’

100
Q

What category of ST can the fraud theory not explain?

A

HST

101
Q

What case shows the BENEFICIAL consequences of a CT?

A

AG for Hong Kong v Reid

102
Q

What suggests courts are not looking for a valid common law contract in MW?

A

Majority of cases do not comply with LP(MP)A 1989 s.2 but are enforced anyway

103
Q

What case suggested a HST ‘will not fail for want of a trustee’

A

Sonley v Clock Makers’ Company

104
Q

What case showed B AND C can exercise Saunders?

A

Stephenson v Barclays Bank

105
Q

What happens if B is ignorant of the FST?

A

B takes property absolutely

106
Q

In what case did Lieu suggest there would be no need for a proprietary or personal compensatory claim after improper disposition by B under MW?

A

If all B’s property constituted the trust fund

107
Q

Re Boyes judgment

A

Instructions only found after A’s death so no ST, but RT

108
Q

What case gives the effect of non-compliance with FST requirements?

A

Re Boyes

109
Q

Why did Liew reject Healey v Brown on application of ST if MW fails?

A

B’s promise relates to a fund so can’t point to segregated property held for C

110
Q

Ottaway v Norman

A

B agreed to make a will for C so forced to do so

111
Q

‘Notified… during my lifetime’ but only after so no HST

A

Re Keen

112
Q

What is the exception to the general rule on communication to only some Ts of FST?

A

Re Stead

113
Q

Charles v Fraser general

A

Assumption

114
Q

Sealed envelope

A

Re Keen

115
Q

Re Keen on effect of non-compliance with HST

A

Property goes on RT

116
Q

Birmingham v Renfrew justifying MW/nature of MW

A

Prevents unconscionable conduct through CT

117
Q

Two cases on timing of MW

A

Thomas and Agnes v Carvel; Birmingham v Renfrew

118
Q

Intending to defeat

A

Vatcher v Paull

119
Q

What case shows that communication of a HST cannot be after the execution of the will?

A

Blackwell v Blackwell

120
Q

What is the agreement of a MW considered equal to?

A

Contract at law

121
Q

Will unrevoked after B’s promise justified CT

A

Moss v Cooper

122
Q

Agents

A

Moss v Cooper

123
Q

Kasperbauer v Griffith general

A

‘Knows what she has to do’

124
Q

What two cases show two possible ways A may show reliance on B’s acceptance of FST?

A

Strickland v Aldridge; Moss v Cooper

125
Q

Why does property go on RT if HST fails?

A

Obvious B not intended to be beneficially entitled

126
Q

Strickland v Aldridge general

A

Refraining from making a will

127
Q

S.9 Wills Act 1837

A

Signed writing, witnessing by 2 individuals and all terms of the trust stated

128
Q

What is a criticism of the justification that HSTs are dependent on the doctrine of incorporation?

A

Terms of HST need not be in writing and doctrine doesn’t require B to be aware of the document

129
Q

Birmingham v Renfrew

A

Floating CT

130
Q

Bribe to act contrary to C’s interests

A

AG for Hong Kong v Reid

131
Q

Vatcher v Paull judgment

A

Intending to defeat what donor of power intended = fraud for MW

132
Q

Re Rees judgment

A

If A writes ‘take absolutely’ with other arrangement extra-testamentary, this does not conflict

133
Q

Instructions after death

A

Walgrave v Tebbs

134
Q

Re Hagger

A

Life interest and remainder man possible subject matters of MW

135
Q

What happens if B is ignorant of the FST terms?

A

Failing trust RT

136
Q

What is the usual effect of an FST?

A

B holds on CT for C upon A’s death

137
Q

What are at least two justifications of the position of Blackwell v Blackwell on HSTs?

A

HSTs dependent on doctrine of incorporation, HST cannot contradict will wording and don’t want A to have the power to make unwitnessed future dispositions

138
Q

Re Keen judgment

A

As long as B knew about the trust and had the means of knowing the precise terms, this is enough

139
Q

Re Dale general

A

To C and D equally

140
Q

What case gives the general requirements for all secret trusts?

A

Kasperbauer v Griffith

141
Q

Vatcher v Paull general

A

Intending to defeat

142
Q

Mummery LJ in Olins v Walters

A

mutual wills continue ‘to be a source of contention for the families of those who have invoked’ the doctrine

143
Q

What case shows that the probate doctrine of incorporation can help with evidential requirements of s.9 Wills Act 1837?

A

In the Goods of Smart

144
Q

For CT, C can virtually get an interim injunction as of right before trial

A

Polly Peck v Nadir

145
Q

Intending to defeat what donor of power intended = fraud for MW

A

Vatcher v Paull

146
Q

What is it assumed would happen if a secret B under FST were to die?

A

RT would operate

147
Q

From what jurisdiction was Birmingham v Renfrew?

A

Australia

148
Q

Kasperbauer v Griffith judgment

A

3 requirements for all STs

149
Q

Re Colin Cooper judgment

A

Only first amount communicated is trust property under CT

150
Q

What section of Wills Act 1837 shows that s.9 refers to ‘any testamentary disposition’?

A

S.1

151
Q

AG for Hong Kong v Reid judgment

A

Personal obligation to pay money AND same proprietary rights through CT as under ET

152
Q

Why is the judgment of Birmingham v Renfrew good law?

A

Followed in many English cases

153
Q

Re Goodchild on nature of MW

A

Sui generis closely related to contractual action

154
Q

Re Keen on HST conflict with will terms

A

‘Notified… during my lifetime’ but only after so no HST

155
Q

Re Boyes general

A

Solicitor

156
Q

What case shows that the effect of an FST is just to force B to fulfil his promise to A?

A

Ottaway v Norman

157
Q

Re Stead judgment

A

LJ Farewell said that if will of JT property is made/left unrevoked after communication to B, all Ts are bound

158
Q

Re Walter’s on B’s duties/rights under a MW

A

question of permissibility for use of property in B’s lifetime is fact specific

159
Q

What case showed that if HST communication made to one T before execution, all are bound?

A

Re Gardon

160
Q

Why does Critchley reject the dehors the will theory?

A

WA covers ALL testamentary dispositions

161
Q

What judge in what case enforced that MW is not enforcement of a contract?

A

Mummery LJ in Re Walters

162
Q

Sonley v Clock Makers’ Company

A

HST ‘will not fail for want of a trustee’

163
Q

David Donaldson QC in Healey v Brown

A

refused to enforce MW without compliance with LP(MP)A 1989 s.2

164
Q

Irish case showing rejection of requiring HST to be communicated before will execution?

A

Re Browne

165
Q

Gardner justifying MW

A

Enforcing detrimentally relied on agreements (PE)

166
Q

Floating CT

A

Birmingham v Renfrew

167
Q

Requires signed writing for a contract of land

A

LP(MP)A 1989 s.2

168
Q

What academic argues Sts are inter vivos?

A

Maudsley

169
Q

what does a bare power mean

A

B can exercise property for their own enjoyment as long as they don’t intend to defeat the MW agreement

170
Q

What academic thought HST should exist at all?

A

Hackney

171
Q

What case shows that terms of HST can conflict with will?

A

Re Rees

172
Q

How can Birmingham v Renfrew be criticised?

A

No such thing as a floating CT and lack of certainty of subject matter

173
Q

Probate doctrine of incorporation

A

In the Goods of Smart

174
Q

What judge in Re Stead was critical of the JT promise distinction for FSTs?

A

LJ Fairwell

175
Q

Why was there an RT in Re Boyes?

A

Instructions after death so no ST, and failing trust as solicitor doesn’t take gifts by definition

176
Q

What case showed there is no need to receive property at all for MW doctrine?

A

Re Dale

177
Q

What did A intend in Kasperbauer v Griffith?

A

That his widow leave all property to his 3 children when she died

178
Q

Why is Maudsley’s explanation of STs hard to accept?

A

can’t declare an immediate trust of future property and wounded to comply with s.53(1)(b) LPA because would be express

179
Q

What makes D personally liable to account under a CT, according to Independent Trustee Services v GP Noble Trustees?

A

Conscience affected with knowledge of CT circumstances

180
Q

What happens if a secret trustee dies?

A

There should be no trust, if ST only constituted upon receipt of the property (maybe not the case though)

181
Q

What case suggests that C’s interest arises as soon as B accepts the ST obligation?

A

Re Gardner (No.2)

182
Q

What is required between A and B before a CT is imposed, in general?

A

Agreement

183
Q

With what case can the fraud theory of ST be linked with?

A

Rochefoucauld v Boustead

184
Q

Re Heys on revocatin

A

If B revokes his will, will takes effect but D holds on trust for C

185
Q

Conscience affected with knowledge of CT circumstances to be personally liable

A

Independent Trustee Services v GP Noble Trustees

186
Q

Criticism of the justification that courts don’t want A to reserve a power to make unwitnessed future dispositions?

A

FSTs do exactly that

187
Q

Thomas and Agnes v Carvel

A

Obligation of MW when A dies

188
Q

Who said to write off MW doctrine as ‘sui generis’ is an act of despair?

A

Liew

189
Q

What was lacking of the three requirements in Kasperbauer v Griffith?

A

Communication

190
Q

Re Gardner (No.2)

A

Suggests that in a HST, if secret B dies property would go to C’s estate

191
Q

Re Dale on MW justification

A

‘To prevent A from being defrauded’

192
Q

Criticism of the justification that HSTs cannot contradict will wording?

A

FSTs do

Law Second Year (62 decks)

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