This chapter examines tracing and identifies it as a process or mechanism rather than a remedy or a claim. It is based on a proprietary claimwhich gives the claimant an advantage over others and involves a owner identifying an asset in the hands of a third party. The right to trace lies in both common law and in equity although many academics have argued that it would be better to have just one system. The right to trace at common law depends on proof of legal ownership. The right is lost once the property has become mixed. The rules of equity are far more flexible than those at common law becuase it allows tracing through mixed funds. The right to trace in equity depends on proof of an initial fiduciary relationship and the claimant has the equitable title or beneficial interest. Special rules have developed for tracing in equity through bank accounts. These vary as to whether or not the funds are mixed with those of the trustee or between two innocent volunteers. There are limits to equitable tracing including where the bona fide purchaser for value without notice of the equitable interests; dissipation of the funds and also where it is inequitable to trace.

Where a settlor creates a trust it will be enforceable once the requisite formalities are satisfied. A key feature of a trustis the separation of the legal and the beneficial title. The trustee holds the legal title and the beneficiaries hold the equitable interest. In order for the trust to be enforceable by the beneficiaries there must be no doubt that the property has been validly passed to the trustee or that the settlor has made a valid declaration of a trust. Anyone can create a trust of personalty unless he/she is shown to be mentally ill and unable to understand the nature of the gift and or in the case of land under under the age of eighteen. There are strict formalities where trust property comprises land the formalities are very specific and must conform with the Law of Property Act 1925 s.53. A distinction is drawn between trusts of land which must be evidenced in writing and trusts of equitable interests which must be in writing at the time of the disposition. There are some exceptions to this rule for instance there is no disposition if both the legal and equitable interest are transferred together. Emphasis is placed on the role of formalities. It is important to be able to locate the legal and equitable title in particular to prevent fraud.

This chapter concentrates on the three certainties. Every private express trust must satisfy the three certainties in order to be valid. The three certainties are: intention, subject matter and objects and each are dealt with in detail. Certainty of intention depends on showing that the settlor intended to create a trust. Sometimes the words used will be regarded as precatory in which case the y will be regarded as showing a moral obligation only. There must also be certainty as to what property forms the subject matter of the trust. There are two key aspects of certainty of objects evidential and conceptual certainty. Conceptual certainty is necessary for all types of trust but evidential certainty is only needed for fixed trusts. The test for certainty of objects in a discretionary trust has been subject to much debate but today the test is the given postulant test which is the same test as applied for powers. It must be possible to say with certainty whether any person falls within or without the class. The test for a gift subject to a condition precedent is a lower test and the gift will survive if it can be said with certainty that one person falls within the class.

This chapter examines charitable trusts in particular the special status that they hold and the range of advantages that charitable trusts hold compared to private trusts such as the relaxation of the rules of certainty of objects and the perpetuity rules. In order to be a charitable trust it must satisfy three key requirements: it must be for a charitable purpose; be exclusively charitable and for the public benefit. The common law definition of a charitable purpose and the statutory definition are considered. The Charities Act 2011 widened the definition of a charity to include such headings as the advancement of the arts and of citizenship and the relief of those in need by reason of youth, age ill-health and other disadvantages as well as more traditional heads such as the relief of poverty. The question of what constitutes public benefit has caused problems of definition as shown in recent case law. Where a charitable gift fails the funds may be transferred to another charity under the rules of cy-pres. These depend on whether there is initial or subsequent failure of a charitable trust. In cases of initial failure a general charitable intent must be shown by the testator.

This chapter discusses secret trusts and mutual wills which both operate under the principles of constructive trusts although there is some discussion as to their exact status. The requirements for a secret trust which are intention, communication and acceptance are all discussed in some detail as is the case law in support of each aspect. The difference between half-secret and fully secret trusts is considered in particular the timing of the communication of the intention by the secret trustee. A key aspect is the way secret trusts operate in view of the strict statutory requirements of the Wills Act 1837. The justification for secret trusts is explored and the key theories i.e. the prevention of fraud and the 'dehors' the will theory are both looked at in detail. The basis of mutual wills is also examined in detail and the reasons why the courts are prepared to regard the survivor of a couple to be bound by an agreement not to revoke his or her will after the death of the first party. Recent case law such as Olins v Walters is discussed.

Common law remedies did not provide adequate compensation for many claimants and they sought a remedy from the King instead. The King had so many cases to hear that he asked the Lord Chancellor to assist. The Lord Chancellor was a man of the Church and so other remedies which were often fairer were granted. One remedy was specific performance which required the defendant to carry out certain duties. It can only be awarded in certain circumstances and will not be awarded when the claimant does not come to court with 'clean' hands which means the claimant must not have behaved improperly to the defendant. Contracts requiring supervision such as employment contracts will not be specifically enforced. Other types of equitable remedy include injunctions which are orders usually forbidding an act to be done which constitutes an infringement of legal rights. Sometimes an interim injunction may be awarded before the final judgment where certain conditios are satisfied.Other equitable remedies include rectification allowing the parties to rectify a contract that does not reflect the true intentions of the parties and rescission which allows a contract to be set aside.

This chapter examines when a trust becomes fully constituted. It considers the maxim of equity 'equity will not assist a volunteer'. A trust is fully constituted when the settlor either conveys the property to a trustee or declares that he holds the property on trust for named beneficiaries. The trust will only be enforceable when a settlor has done everything in his power to transfer the property according to the nature of the property. In some limited circumstances a trust will be enforceable even where the settlor has not done everything in his power if it would be unconscionable not to enforce it. An incompletely constituted trust may be enforceable by the benficiaries either under teh rules of contract or unusually as a trust of a promise. There are three main exceptions to the rule that equity will not assist a volunteer: the rule in Strong v Bird; a donatio mortis cause and proprietary estoppel.

This chapter examines the problems created by unincorporated associations which do not have legal personality. Where people join togther to form a group to pursue a common purpose such as sport then unless they wish to register as a company the law will not recognise the group. Problems arise where the group wish to hold money or funds. Unincorporated associations are defined as where two or more persons are bound togther for a common purpose. The group is bound by mutual undertakings each having mutual duties and obligations and a member can join or leave at will. There are a number of theories as to how an unincorporated association can hold funds such as a gift to present membersalthough this is a problem if the property is not easily divisible. Another theory is a trust for the present members and also a trust for present and future members. The most popular theory is the 'contract-holding theory'. Under this theory where a member signs up to join a group it is held that funds are held by an officialaccording to the rules by the club. A sole surviving member of a club can claim the funds for himself absolutely.

This chapter examines the nature of fiduciary duties. They are difficult to define but include loyalty, acting in good faith and ensuring that there is no conflict of interest. This relationship arises where one person has undertaken to act for another. E.g. trustee and beneficiary, solicitor and client, and company director and board. Such relationships also arise where it develops from the nature of the duties owed such as the employer and employee relationship. Not all duties owed by a fiduciary are fiduciary in nature such as the duty of care owed by a solicitor to his client. The emphasis in this area of law is on the fact that a fiduciary cannot make a profit from his position and any profit will be owed to his principal e.g. a trustee must disgorge any profits made through his position as a director if the directorship is attributable to his trusteeship. The law does not differentiate between profits made in good faith and those made in bad faith. Much of the chapter concentrates on the question of bribes and opportunities that arise through the position of a fiduciary. The law is now settled that the principal can claim a proprietary remedy rather than a personal remedy which is relevant where a fiduciary is bankrupt as the principal will have the first claim to any funds held by the fiduciary.

This chapter examines the resulting trust. It is a type of implied trust and it arises by operation of laweither because of the presumed intention of the parties or because of the failure of an express trust. A presumed resulting trust arises where land is purchased in the name of one party but the purchase monies have been provided by another party. The presumption can be rebutted by evidence of a gift or advancement to a close family member of a loan. Evidence of an illegal motive was once inadmissible to use to rebut a presumption but today the court uses its discretion as to whether it will be admitted. Automatic resulting trusts usually arise where a purpose has failed. A new type of trust 'the Quistclose trust' was created when Quistclose successfully recovered money loaned to pay dividends to a company which went bankrupt. Sometimes a surplus remains after the purpose of the trust has been carried out this will result back to the settlor and where a trust fails to conform with key requirements of a trust then the property will usuallyrevert back to the settlor although in some cases the trust property has been found to be an absolute gift.

This chapter considers ownership of the family home which is often the most significant asset owned by the parties. Where a couple are not married or in a civil partnership ownership has to be determined through principles of land law and trusts. There are two approaches eithera resulting trust or a constructive trust and both are considered in detail although the resulting trust is used far less frequently today in relation to the family home. The resulting trust is based on contributions to the purchase price whereas the constructive trust is based on intention of the parties which can either be implied or express. Where property is owned jointly the court presumes equal ownership of the beneficial interest but this can be rebutted. There is far more flexibility with a constructive trust both in finding intention and also in quantification of the shares but the outcome of cases is far more uncertain particularly where the courts impute the intentions of the parties as to the size of the shares. Rights in the family home can also arise under proprietary estoppel.

This chapter describes the wide variety of duties that the office of trustee carries. At the heart of trusteeship is the duty to carry out the terms of the trust and to act in the best interests of the beneficiaries at all times. The trustees owe the beneficiaries a duty of care both under common law and statute. Trustees owe a range of duties such as to provide accounts and information and to act unanimously and impartially at all times. The common law governs the right of the beneficiaries to see trust documents in particular the case of Schmidt which held that the court can exercise its discretion as to who can see a trust document. Trustees have a duty to exercise any discretion personally. Trustees do not have to give their reasons for any decision made but where they do so the court has the right to examine the reasons. Trustees have a statutory duty to invest the trust fund and a duty to apply the standard investment criteria which includes the need to consider whether the investments are both suitable and also sufficiently diverse. A trustee has a duty to act personally but may delegate some duties. The Trustee Act 1925 gives the trustees powers to advance both income and capital to beneficiaries.

One of the key rules of trusts is that there must be ascertainable beneficiaries so a trust for a purpose may fail because the objects are uncertain. There are some limited exceptions which allow purpose trusts to be upheld. These are examined in this chapter. The first group are the anomalous exceptions which include trusts for specific animals. Trusts for animals as a group will be charitable but only if they fulfil the public benefit rule. A trust to erect and maintain a monument has usually been upheld but only where it complies with the perpetuity period. Following the case of re Denley where a trust appears to be for a purpose it may be upheld if there are hidden beneficiaries. In some circumstances an unincorporated association can form an exception to the beneficiary principle. There is a possible solution to the problems created by purpose trusts which is to use an enforcer or protector trust. The chapter discusses how these have been adopted in countries such as the Bahamas and the Channel Islands. It also considers the problem of who enforces against the enforcer of a purpose trust since the enforcer has no interest in the trust property.

As a general rule once a trust is fully constituted the terms are binding on the trustees and the provisions of the trust must be carried out. Occasinally where circumstances have changed there is scope to vary the trust usually in the event of an unforeseen event arising. This chapter examines when the terms of a trust can be varied. The court holds inherent jurisdiction to vary the trust in certain circumstances but the jurisdiction is limited. There are several statutory provisions that give the court jurisdiction to vary a trust but the statute with the widest range of powers is the Variation of Trusts Act 1958. Under the Act the court can authorise a variation on behalf of a range of beneficiaries including any person with an interest both vested and contingent and who by reason of infancy or incapacity is incapable of assenting. It also includes a category of beneficairies who may become entitled if certain events occur in the future. Exercise of the jurisdiction depends on whether it is for the benefit of the beneficiaries and this is dependent on whether a benefit can be shown both financial and non-financial. The jurisidiction is very wide but cannot be exercised if the court believes there is a resettlement as opposed to a variation.