The International Society: How I’ve Gotten To Know The UK

Author: Michaella//University of Auckland//New Zealand

Hello lovely readers! I can’t believe that I have been in the UK for almost two whole months now! The time has flown by so quickly, I’m already beginning to feel a little sad about having to leave in January. However, this time has definitely not been wasted. When I first arrived in Manchester I was introduced to the International Society, a group dedicated to sharing and learning about cultures from all around the world. Through the International Society I have been been able to explore the UK, learn about different cultures, and make friends. So, for anyone reading this who is thinking of coming to Manchester in the future, or is an international student who is already here, join the club!! Not tempted? Well maybe you will be when I tell you about the trips I’ve gone on through the society (trips that occur every weekend, so you’re spoilt for choice friends!)

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British Property Law: How to Define a Valid Trust

One of the more startling aspects of studying abroad was learning that British students at the University of Manchester Faculty of Law begin studying trusts before general real estate in introductory property law courses. As a Canadian law student, ‘Trusts’ and ‘Wills and Estates’ are taught as advanced level upper year courses, which are not touched upon in the 1L program. I am personally intending to take the ‘Trusts’ course in my final semester of 3L. As a result, I’ve had to catch up a bit with the British program!

Roughly speaking, a trust is property transferred to a trustee that is ‘on trust’ for beneficiaries. This is distinct from a gift, which is property transferred absolutely to a donee, and also unique from a power of appointment, where property is transferred to a trustee but the donee of the power of appointment is given the power to select who should receive the property. These concepts are all virtually identical in Canadian law.

To break down these concepts even further, a trustee can choose to distribute their property through a fixed trust or a discretionary trust (where the beneficial class is certain but trustees have discretion as to individual beneficiaries and/or beneficial shares). Most importantly, whether or not a trust is fixed or discretionary, it can only be valid when the following criteria are met:

  1. There is certainty of intention to create a trust;
  2. There is certainty of subject matter; and
  3. There are certainty of objects.

The seminal British case dealing with the concept of validity is Knight v Knight (1840) 3 Beav 148. In this case, there was an attempt made to dispose of a large amount of property via trusts and wills. The significant phrase used was: “I trust to the liberality of my successors to reward any others of my old servants and tenants according to the deserts, and to their justice in continuing the estates in the male succession, according to the will of the founder of my family, my above-named grandfather Richard Knight.”

The question for the courts was whether this was a will, a general statement, or a power of appointment. The phrase “I trust” was pivotal: was this a casual “I expect them to do so …” or significant enough to create a valid trust? While the testator was expecting successors to be liberal and just when rewarding his old servants and tenants, this is a call to moral justice. But does a call to moral justice create an obligation to leave property down the male lineage and/or give money to past employees?

Lord Langdale specified that the three certainties needed to be judged objectively according to the language of the document. He emphasized that courts should not intervene in order to make a will for a testator  if they had not been clear in doing so themselves. In simpler terms, the testator was not clear in his intentions – and the courts should not read his mind. It is a testator’s obligation to set out his mind in a will, which was emphasized again in the recent case of McPhail v Doulton [1971] AC 424 by Lord Wilberforce, who noted that a trust will only be valid if it is practically certain what the settlor wanted to do.

This brings us to the next general question: are words imperative?

It’s important to note that in British law, trusts can be created without using words at all, which are a subset of trusts known as implied trusts. Re Kayford Ltd [1975] 1 WLR 279 [Kayford] is authority for the proposition that the word ‘trust’ is not needed to create a valid trust: courts are allowed to look to the intention of the parties rather than the form of the document. In Kayford, a mail order company was in financial difficulty. A separate bank account had been created to deposit money for customers whose goods hadn’t been used; the main question of the case revolved around whether the money in the bank account was the assets of the creditors, post-insolvency, or the original customers.

In Kayford, even though the formal word ‘trust’ was not used, the conduct of the parties was clear. A valid trust had been created. Due to the presence of a separate bank account, the customers were able to get their money back: actions spoke louder than words.

However, the British case law is somewhat muddled on this point. Alternately, in Re Snowden (Deceased) [1979] 2 All ER 172, an elderly lady left property to her brother in her will, stating that he would know what to do with it. The court found that there was no obligation imposed to create a trust – instead, this was an absolute gift. Although there was a moral obligation on the brother, a moral obligation is not enough to create a legal or fiduciary one.

Similarly, in Jones v Lock [1865] LR 1 Ch App 25, a father placed a cheque for his infant son in his safe. While he made an appointment to see a solicitor to change his will so that his infant son would receive his money upon his death, he died before actually changing the will. Unfortunately for the child, the courts held that there was no intention to create a trust. While it was self-evident that the father intended the son to receive his property, simply putting the cheque into a safe did not manifest the intention that he was holding property as a trustee for his son. The justification for this decision stems from a policy argument: the courts argued that it would create a dangerous precedent should a valid trust have been found.

Looking forward to learning more in the final two months of the semester!

Cheers,

Tamie Dolny

 

Day Trip to Alton Towers Resort

By Poon Yun Xuan, Nanyang Technological University, Singapore

Hello again! It’s been almost 2 months since lessons started, and Reading Week has come and gone. Honestly, where did all the time go?? A few weeks ago, my friends and I decided to make the responsible decision to ignore our growing pile of work and visit Alton Towers Resort over the weekend. I’m such a sucker for amusement parks, so this day trip was right up my alley. In this post I’ll be taking you guys along with me on my day to the theme park!

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Studying British Law Abroad: Developments in Criminal Legal Theory

Studying British law after having been trained in Canadian jurisprudence is fascinating. As an exchange student at the University of Manchester’s School of Law, I have been thrilled to learn that many cases that I studied originally at the University of Toronto were also being taught in a British context. As it is self-evident that Canadian law is functionally built upon fundamental British cases, I have still been pleasantly surprised at the nuances between jurisdictions.

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Sorry Mom, I’ve Been Talking to Strangers

By Shannon Mahon (Villanova University, United States of America)

I am not a well-travelled person- well, not yet at least. My life has been limited to my small corner of the world in Philadelphia, Pennsylvania, USA. My social circle pre-departure closely reflected this fact- nearly all of my friends hailed from the same area, with travel history about as limited as mine. In choosing to spend my second year of university studying nursing in Manchester, I made a promise to myself.  Continue reading