Instructions:
The notes consist of two separates but connected documents:
1. Equity and Trust Exam Structure Notes – this covers the exam question structure
(e.g. Step 1, Step 2…) and written out answers for generic parts of each question
2. Equity and Trust Exam Reference Document – this covers the various detailed parts
of each questions.
Words that are boldened and coloured in purple, e.g. Example, will have the corresponding
word in the Reference Document along with its written out answer.
The purpose of the notes being in this format is to allow the examinee to have a clear initial
understanding of the structure of the exam question AND be able to apply each question to
its unique facts and choosing only those answers that are necessary.
Note: where you see (ATF) this is asking you to apply the answer to the set of facts given in
the exam.
Topics covered:
1. INTENTION, SUBJECT MATTER AND FORMALITIES [UNIT 1 + UNIT 2: SU 1]
• Defective Transfer Questions
2. CERTAINTY OBJECTS, THE BENEFICIARY PRINCPLE AND RULES AGAINST PERPETUITY
[UNIT 1; SU]
• Invalid Declaration Questions
i. Certainty of Object Analysis
ii. Beneficiary Principle Analysis
3. TOPIC: FAMILY PROPERY [UNIT 1; SU 3]
4. TOPIC: TRUSTEES AND FIDUCIARIES (UNIT 3)
• Running a Trust Questions
• Fiduciary Duty Questions
5. TOPIC: REMEDIES (UNIT 4)
• Remedies against Trustees and Fiduciaries Questions
• Remedies against Third-Parties Questions
6. TRUST AND INSOLVENCY (UNIT 4)
, TOPIC: INTENTION, SUBJECT MATTER AND FORMALITIES [UNIT 1 + UNIT 2: SU 1]
Defective Transfer Questions -> Reference Document pages 1-5
STEP 1: Identify the type of disposition and necessary declaration.
Note: deal with each individual disposition in turn
Turner LJ in Milroy v Lord (1862) outlined the three methods a settlor can dispose of a benefit, namely: an
outright gift, a transfer to a trustee to hold on trust for a beneficiary, and a settlor declaring himself as the
trustee for the beneficiary.
The disposition at hand is a [refer to GIFT or TRUST WITH SOMEONE ELSE AS TRUSTEES or TRUST WITH SELF
AS TRUSEE]
[If GIFT or TRUST WITH SOMEONE ELSE AS TRUSTEE refer to STEP 2] -> bc self as trustee requires no
formalities in transfer other than for trusts of land
Note: do not go into detail on the 3 certainties as there will usually not be a problem with that in these types of
questions, just briefly mention them and explain why they’re satisfied.
Note: s.15 Wills Act 1837 – the witness of the will cannot accept a gift THEREFORE ALWAYS CHECK IF GIFT IS
BEING GIVEN TO A WITNESS
STEP 2: Where there is a transfer -> consider if the correct formalities been met.
A transfer of property will only be valid if it satisfies the relevant formalities, which is dependent on the type of
property. [Refer to CHATTELS or SHARES or LAND or EQUITABLE INTERESTS].
[If correct formalities are not met -> refer to STEP 3]
STEP 3: Where the transfer has been defective -> consider if exceptions.
Given that the transfer would be deemed defective, as (ATF), one should check whether equity will perfect any
defects, despite it being imperfect at law. As a rule, ‘equity will not perfect an imperfect gift or assist a
volunteer’ (Milroy v Lord), however there are various exceptions to this maxim that may apply to the gift at
hand.
Note: the exceptions only apply where there is a defective transfer ONLY, not when there’s an issue with the 3
certainties
[Refer to THE DONEE IS THE PR -> EVERY EFFORT TEST -> UNCONSIONABLE -> [if relevant] IF SETTLOR IS A
TRUSTEE or IF EQUITABLE INTEREST]
Note: For THE DONEE IS THE PR – if someone has become an administrator of another’s estate, they are
automatically a PR
STEP 4: Conclude if defective gift will be saved.
The notes consist of two separates but connected documents:
1. Equity and Trust Exam Structure Notes – this covers the exam question structure
(e.g. Step 1, Step 2…) and written out answers for generic parts of each question
2. Equity and Trust Exam Reference Document – this covers the various detailed parts
of each questions.
Words that are boldened and coloured in purple, e.g. Example, will have the corresponding
word in the Reference Document along with its written out answer.
The purpose of the notes being in this format is to allow the examinee to have a clear initial
understanding of the structure of the exam question AND be able to apply each question to
its unique facts and choosing only those answers that are necessary.
Note: where you see (ATF) this is asking you to apply the answer to the set of facts given in
the exam.
Topics covered:
1. INTENTION, SUBJECT MATTER AND FORMALITIES [UNIT 1 + UNIT 2: SU 1]
• Defective Transfer Questions
2. CERTAINTY OBJECTS, THE BENEFICIARY PRINCPLE AND RULES AGAINST PERPETUITY
[UNIT 1; SU]
• Invalid Declaration Questions
i. Certainty of Object Analysis
ii. Beneficiary Principle Analysis
3. TOPIC: FAMILY PROPERY [UNIT 1; SU 3]
4. TOPIC: TRUSTEES AND FIDUCIARIES (UNIT 3)
• Running a Trust Questions
• Fiduciary Duty Questions
5. TOPIC: REMEDIES (UNIT 4)
• Remedies against Trustees and Fiduciaries Questions
• Remedies against Third-Parties Questions
6. TRUST AND INSOLVENCY (UNIT 4)
, TOPIC: INTENTION, SUBJECT MATTER AND FORMALITIES [UNIT 1 + UNIT 2: SU 1]
Defective Transfer Questions -> Reference Document pages 1-5
STEP 1: Identify the type of disposition and necessary declaration.
Note: deal with each individual disposition in turn
Turner LJ in Milroy v Lord (1862) outlined the three methods a settlor can dispose of a benefit, namely: an
outright gift, a transfer to a trustee to hold on trust for a beneficiary, and a settlor declaring himself as the
trustee for the beneficiary.
The disposition at hand is a [refer to GIFT or TRUST WITH SOMEONE ELSE AS TRUSTEES or TRUST WITH SELF
AS TRUSEE]
[If GIFT or TRUST WITH SOMEONE ELSE AS TRUSTEE refer to STEP 2] -> bc self as trustee requires no
formalities in transfer other than for trusts of land
Note: do not go into detail on the 3 certainties as there will usually not be a problem with that in these types of
questions, just briefly mention them and explain why they’re satisfied.
Note: s.15 Wills Act 1837 – the witness of the will cannot accept a gift THEREFORE ALWAYS CHECK IF GIFT IS
BEING GIVEN TO A WITNESS
STEP 2: Where there is a transfer -> consider if the correct formalities been met.
A transfer of property will only be valid if it satisfies the relevant formalities, which is dependent on the type of
property. [Refer to CHATTELS or SHARES or LAND or EQUITABLE INTERESTS].
[If correct formalities are not met -> refer to STEP 3]
STEP 3: Where the transfer has been defective -> consider if exceptions.
Given that the transfer would be deemed defective, as (ATF), one should check whether equity will perfect any
defects, despite it being imperfect at law. As a rule, ‘equity will not perfect an imperfect gift or assist a
volunteer’ (Milroy v Lord), however there are various exceptions to this maxim that may apply to the gift at
hand.
Note: the exceptions only apply where there is a defective transfer ONLY, not when there’s an issue with the 3
certainties
[Refer to THE DONEE IS THE PR -> EVERY EFFORT TEST -> UNCONSIONABLE -> [if relevant] IF SETTLOR IS A
TRUSTEE or IF EQUITABLE INTEREST]
Note: For THE DONEE IS THE PR – if someone has become an administrator of another’s estate, they are
automatically a PR
STEP 4: Conclude if defective gift will be saved.
