LAW 2502 Lecture Notes - Lecture 9: Settlor, Fiduciary, Fide
23 May 2018
School
Department
Course
Professor
Equity Claim Skeleton
Weaving in case/legislative authority
• …. Is authority for the proposition that…. In these circumstances therefore….
• …. Is authority that there is justification for a …..
• The application of s.. will result in…
Consider before applying case law
• How does this case support your argument? Because the facts sufficiently similar or because it be
distinguished?
• What is the ratio of the case?- binding HC or persuasive lower court/dicta?
Process
1. State which party may bring an action against whom- note the likely remedy they could seek
2. Is the party claiming a right under an EXPRESS TRUST? (clear intention)
a. Note if there is a contract on the facts
b. Creation of an express trust
i. By direction
ii. By transfer of property by the settlor to trustee
iii. By direction
c. Are the three certainties present?
i. Certainty of intention (below)
ii. Certainty of subject matter (below)
iii. Certainty of objects (below)
• Fixed trust?
• Discretionary trust?
• To an incorporated body?
• Is it charitable?
d. Discuss the rights of a beneficiary under this specific trust- advise based on facts
i. Note how the beneficiary can deal with their interest (any limitations?)
3. Is the party claiming a right under a RESULTING TRUST (presumed intention) (discuss as an alternative after
express trust)
a. Are the three certainties present?
i. Intention to create is presumed. Need to satisfy that there is certainty of subject matter + objects
• No statutory need for resulting trust to be in writing s 29(2) Law of Property Act 1936 (SA)
b. Has a resulting trust arisen based on the facts?
i. Automatic resulting trust (below)
• Where express trust has failed
• Where settlor fails to dispose of entire beneficial interest in the property
• Where purpose of trust cannot be fulfilled
• Where amount of property given exceeds amount needed
ii. Will the presumption of resulting trust arise (below)
• Situations
A gives property to B- law presumes B holds it on trust for A
Where A purchased property in the name of B (with consent)- law presumes B holds their interest
for A
• Presumption can be rebutted by… (if rebutted, argue constructive trust)
Evidence of contrary intention
Presumption of advancement (if certain relationship has arisen on the facts)
4. May the party bring an action for breach of a fiduciary duty?
a. Must be a fiduciary relationship
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