2022 TRUSTS MARKING GUIDE

PROBLEM QUESTIONS

1. Domino died last week. In his Will he made the following bequests:

(a)  ‘£50,000 to Cat, and on her death, what is left of that sum to Ella and Fritz in such
proportions as a prudent person would deem sufficient for their needs’;

On the face of it there is a problem with the subject matter of the gift over for E and F:
“what is left of that sum” is conceptually uncertain and so we might simply think that the
gift over would fail (citing e.g. Sprange v Barnard, Curtis v Rippon, Palmer v Simmonds or any
equivalent cases) and C would take this absolutely (as in Sprange).

However, Re Last (1958) is authority that the court might be prepared to take a generous
view of the testator’s words and reinterpret this as gift to C for life, remainder to E and F,
which would be valid, though the effect would be that C would only get to enjoy the income,
not the capital, during her lifetime. Really nuanced answers might note that in Re Last the
gift over was of “anything that is left” which arguably meant that the testator anticipated
that nothing might be left on C’s death; in the instant case, “what is left” seems to assume
that something will be left on C’s death, perhaps implying C isn’t free to spend all the
capital, which might strengthen the case for applying Re Last.

Really, really good answers might note two things that we didn’t consider in the lectures but
which were in the seminar reading. The first is that if C is D’s spouse (or civil partner), and E
and F are his issue, then the Administration of Justice Act 1982, s 22 (or the Civil Partnership
Act 2004, Sch 4 para 3) provides a presumption of an outright gift to C ‘unless a contrary
intention is shown’. There is, of course, nothing on the facts to indicate these relationships
so we shouldn’t mark down anyone who misses this point. The second is the possibility of
using Ottoway v Norman’s floating secret trust analysis rather than a Re Last-style life
interest, though this raises issues re exactly what the obligations of C would in relation to
the £50,000 during her lifetime and her entitlement to spend the capital (gifts or
settlements made by C in order to defeat the floating trust would not be ok according to
Ottoway, but spending it in an “ordinary way” would be fine according to Re Cleaver).
Answers that missed these points could still score highly but answers that made these
points were rewarded generously.

The final issue is the division of the gift over, if that gift over is otherwise valid. Does
splitting it in “such proportions as a prudent person would deem sufficient for their needs”
mean uncertainty as to their shares? Could draw an analogy with Re Golay, which is
authority, albeit a bit dubious, that a “reasonable” income is sufficiently certain. Perhaps a
solution is to interpret this as meaning the gift over is held on discretionary trust for E and F
rather than on a fixed trust of uncertain shares – if a T is the paradigm prudent person, is
the clause essentially saying “in such shares as a T thinks fit based on the needs of the Bs”?
If so, this would be fine: the lack of a named trustee is not a problem given that a trust
won’t fail for want of a trustee.
(b)  ‘£15,000 to Samuel, trusting that he will do the right thing by my elderly mother’;

This is simply an outright gift to S; the moral obligation to do the right thing is not obligatory
and so has no legal effect (Lamb v Eames; Re Hamilton; Re Johnson etc).

(c)  ‘£100,000 to my trustees to be distributed as they think fit amongst such persons as they
identify to be fans of Great Rollright Football Club’; and

This is clearly intended to be a discretionary trust, so the issue here is simply whether we
have certainty of object following McPhail v Doulton and Re Baden (No 2). On the face of it,
the “fans” of a particular football club is not a conceptually certain concept: while there may
be a core of people whom we would all agree would fall within the definition – e.g. season
ticket holders – there will be others about whom we are not sure, as fandom is a subjective
concept. It would certainly fail the strict approach to the is or is not test envisaged by Lord
Wilberforce in McPhail, and applied by Stamp LJ in the minority in Baden (No 2). Answers
should consider the majority approach in Baden (No 2) whereby it is enough for a
“substantial number” of people to fall definitely into the class of beneficiaries, but hopefully
they will conclude that the class is still too uncertain – though of course Megaw LJ doesn’t
give us any guidance as to what kind of substantial number we are looking for in any given
case.

Answers might try to argue that the uncertainty is resolved by making the Ts’ opinion
determinative, as Domino has provided that the trust is for “such persons that they identify
to be fans”. While this saved an uncertain clause in Re Coxen (1948), if a class of objects is
conceptually uncertain for the court then ex hypothesi it must also be conceptually
uncertain for the Ts – see e.g. Re Jones (1953) and Re Wright (1984); also Re Raven (1915).
Good answers might speculate as to whether the will construed as a whole might shed
further light – perhaps there is another clause giving the Ts some conceptually clear criteria
to apply when making their decision, in which case that would remedy the uncertainty. The
appointment of an expert a la Re Tuck is not really helpful here: an expert on the club’s fan
base might have evidential expertise but would not have any particular expertise on the
meaning of the word “fan”.

Students might try to argue that the class is not “fans of Great Rollright Football Club” but
rather “such persons as [the Ts] identify to be fans of Great Rollright Football Club”, so the is
or is not test is satisfied: either the Ts think you are a fan or they do not. This might seem
like a trump card that could make any otherwise uncertain class certain, but of course it is
really just another way of saying that the Ts’ opinion should be determinative, so just leads
us back to the points in the previous paragraph.

(d)  ‘my good friend, Gerald, to be allowed to choose 20 bottles from my cellar of vintage
port, with the remaining bottles to be held on trust for my god-son Louis, until he reaches
the age of 25.’ Gerald died the week before Domino, and Louis is currently 22.

This is a straightforward Boyce v Boyce situation: if G did not choose his bottles of wine
before he died then L’s gift on trust of the bottles fails for lack of certainty of subject matter.
If G chose them beforehand, the trust for L is valid – he’ll receive his bottles in 3 years’ time
but of course since he is over 18 he could, assuming he is of sound mind, collapse the trust
using Saunders v Vautier and take the bottles now.

Re London Wine Co etc has no relevance here if we take it that the bottles of port must be
unique otherwise it makes no sense to have Gerald make a choice – many answers got
rather bogged down in this area to their detriment.

2. Recently, Asif was diagnosed with a life-threatening illness. He is keen to put his affairs in
order.

Asif possesses a valuable family heirloom of considerable sentimental value to him. He

Various things to consider here. We can rule out a simple inter vivos gift to S since A doesn’t
want to lose ownership of the heirloom prior to his death. There is nothing to stop him
giving S the heirloom to hold on trust for A for the rest of his life with the remainder going
to S – assuming it is a chattel this can be done without any written formalities, and legal title
can be given to S simply by giving her possession coupled with the intention to transfer legal
title. Even if a deed of gift was used, this would not be a public document unlike a will.

If A does not like the idea of parting with the legal title to the heirloom before his death we
might advise him of the possibility of using a secret or half secret trust. Answers will need
to go through the requirements of each. A fully secret trust will need A to leave the
heirloom to his intended T in his will, and on top of that his intention to create a trust + full
details of the trust must have communicated to the intended T at some point before A dies,
and the T must have agreed (or acquiesced) to be so obligated (Ottaway v Norman). If
effective, the heirloom will be held on trust for S and her name will not be mentioned in the
will. If there is concern that A wants S to receive it as an outright gift, this can be assuaged
by Saunders v Vautier – S will be absolutely entitled to the heirloom as soon as she is sui
juris, if she is not already, and can then collapse the trust.

We might, though, want to advise A of some down sides. If S predeceases him then instead
of the trust failing and the heirloom falling into A’s residuary estate, as would normally
happen, the secret trust would still be valid and the heirloom would be held on trust for S’s
estate (Re Gardner (No 2)). A may not want this. Another risk is that if the secret trust fails
for some reason then the intended T will be able to take the heirloom absolutely for
themselves as they will appear to be the recipient of a gift on the face of the will. This risk
would be avoided if A created a half-secret trust – if that failed there would be a RT back to
the estate – but the requirements are different: now the intended T must agree to this
before or at the time the will is made (Blackwell v Blackwell). The existence of the trust on
the face of the will, even without the identity of the beneficiary, may also raise questions
that A might not want asking, given his desire to avoid publicity.
Some may have been tempted to go off on a tangent and consider the various attempts to
explain secret and half-secret trusts, and the theoretical problems they raise, but this isn’t
really appropriate here, unless your answer made this relevant to your advice to A e.g. by
using it to argue a particular case ought to be disapplied in the future.

Lastly, A might consider a deathbed gift, if time is of the essence. This would be inter vivos
but conditional upon, and taking effect upon, A’s death. The 3 requirements are that the
gift is made by A in contemplation but not necessarily expectation of his death, that the
heirloom has been delivered to S, and that the gift was conditional upon A’s death (Cain v
Moon). No particular issues are raised here re the delivery of the heirloom – though you
might speculate – but really good answers should have noted that the recent caselaw
suggests that although death need not be imminent A must have a good reason to
anticipate death in the near future (King v Dubray), so we might query just how soon a
death his life-threatening illness might bring about. More problematic is Keeling v Keeling,
which holds that a deathbed gift will not be valid in a situation where the donor actively
declined to make a will – we arguably have that here, given that A’s desire not to use a will
is not because he is on his deathbed but because he wants to avoid scrutiny of his gift.

Asif is a beneficiary under a trust of land. Before he dies, he would like to transfer his
interest to his son, Omar. Again, he would like to keep matters as private and informal as
possible, and would prefer not to put anything in writing.

Here you need to do a little work / speculation as we aren’t told the nature of A’s interest. If
he is absolutely entitled to the 100% of the equity in the land then using Vandervell he could
orally instruct his Ts to transfer it to O and have the legal and equitable title merge. This
wouldn’t require signed writing under s 53(1)(c). However, the transfer of the legal title to
the land would still have to comply with the relevant land registration rules – no need for
details, we don’t cover these on the course though student might remember them from Law
of Property Relations - so we couldn’t avoid writing. Also, we don’t know how old O is – if
under 18 then he couldn’t receive legal title to land anyway. In any case, A might not be the
only beneficiary of the land; if not, he clearly has no right to tell the Ts to transfer the legal
title to anyone else but he also has no right to compel a sale to realise his share of the
proceeds to give to O – the Ts will not do this if it is not in the interests of the Bs as whole.

So probably A will want the existing Ts to keep the land and his interest to pass to O. This
would be a disposition of a subsisting equitable interest and would need to be in signed
writing under s 53(1)(c) following Grey. Answers should then consider the possibility of
getting round this by using a sub-trust – if A retains some active duty for himself as sub-
trustee there could be no question of him dropping out of the picture, and so this would
involve the creation of a new equitable interest rather than the disposition of a subsisting
one. We have a problem though: because this is land, any new declaration of trust must
also be evidenced in signed writing (though not in writing itself) otherwise it is valid but
enforceable under s 53(1)(b). Students might speculate as to the possible ways around this
– not using the statute as an instrument of fraud (Rochefoucauld v Boustead) or the CT
analysis (Bannister v Bannister) – but we aren’t told anything relevant on the facts.
3. Robert died last week. In his Will he left £100,000 ‘to be divided in equal shares between
Clipston Donkey Sanctuary, the Naseby Poor Relief Fund, the National Violet Fever Society
and Sibbertoft Grammar School’. Both Clipston Donkey Sanctuary (a charitable company)
and the Naseby Poor Relief Fund (a charitable trust) ceased to exist in 2021, as they ran out
of funds when donations dried up during the coronavirus pandemic. The National Violet
Fever Society, a charitable trust, was established in the 19th century to provide relief for the
sufferers of Violet Fever, a debilitating lung condition. Thirty years ago, the virus that causes
the condition was eradicated and today only a handful of sufferers remain worldwide, all
aged in their 80s. No institution named Sibbertoft Grammar School has ever existed.

The questions in relation to each of these four bequests are (a) do these gifts fail and (b) if
they do fail, do the assets fall into R’s residuary estate or will they be applied cy pres?

In the case of the Donkey Sanctuary and the Poor Relief Fund, our first task is to consider
whether their purposes are being continued by other charities: if so, the gifts will not fail
and will simply go to those other charities. If no other organisations are carrying on these
purposes, the gifts will also not fail if we interpret R’s gifts as trusts for the charitable
purposes of the Donkey Sanctuary and the Poor Relief Fund: the effect of these charities no
longer existing would just mean we need to find new Ts, and a trust will never fail for want
of a T. According to Re Vernon and Re Spence it will be easier to interpret the gift to the
Poor Relief Fund as a trust for the Fund’s purposes because the Fund was a charitable trust
rather than a charitable company – without its own legal personality, a “gift” to the Fund
could have only ever taken effect as a charitable trust. Cf the Donkey Sanctuary: because
this was a charitable company, it could receive gifts in its own right: the court is more likely
to conclude that this was a gift to that company, not a trust, in which case it now fails.

If the Donkey Sanctuary gift (or the Poor Relief Fund) does fail then because this is initial,
rather than subsequent, failure we will need to show that R had a general or paramount
charitable intention (Re Lysaght) for the cy pres doctrine to kick in. Where money is given to
a named charity, as here, Re Harwood suggests that there will probably not be a general
charitable intention: the more likely interpretation is that R intended to benefit the
Sanctuary specifically rather than charity more generally. If no general charitable intention
then the Sanctuary’s share of the assets fall into the residuary estate. If there is a general
charitable intention, a cy pres scheme will be set up by the court or the Charity Commission
to apply the money for an alternative purpose. Under s 67(3) of the Charities Act 2011,
regard must be had to (i) the spirit of the original gift, (ii) the desirability of finding a new
purpose close to the original, and (iii) the need for the new purposes to be suitable and
effective in the light of current social and economic circumstances. In the case of the
Donkey Sanctuary (and the Poor Relief Fund if we think that fails too) there should be no
problem in finding a suitable close new purpose, though some answers tried to argue that
the third criteria might mean the money should be used for a more pressing social need
than dicky donkeys.

In the case of the National Violet Fever Society, the bequest does not fail, at least not
immediately. However, there may soon be subsequent failure given the ages of all the
potential beneficiaries of the charity: if there is money remaining once the last sufferers of
the disease have died then (unless R’s will provided for a gift over in default) the assets will
be applied cy-pres automatically, as there is no need for a general or paramount charitable
intention in the case of subsequent failure, so there is no question of the assets returning to
the estate on resulting trust. Really nuanced answers noted that there is an argument that
if it was clear from the start that there would always be money left over because the size of
the gift was much more than the Society’s purpose needed, this ought to count as initial
rather than subsequent failure, and thus require a general charitable intention. No case law
on this point, but it did come up on the Moodle discussion board. In this case, I don’t think
we can really say that £25,000 is an extreme amount of money to devote to relieving
suffering even if there are only a handful of potential Bs left.

Sibbertoft Grammar School: where there is a gift to an institution that never existed the gift
must fail but it can be applied cy pres as the court may presume there is a general charitable
intention (Re Harwood): because R never had a real institution in mind, he may be deemed
to have been thinking in general terms of the type of charitable purpose indicated by the
name by which he sought to describe the intended beneficiary, in this case a trust to
advance education.

Robert also left £50,000 on trust for another charity, the Welford Wildlife Association,
subject to his trustees having an absolute discretion to distribute the money to his adult
children, Amy, Nina and Sarah, in such amounts as his trustees think fit. Against the wishes
of the children, the Association is seeking to collapse the trust and insists that the trustees
transfer all the money to its current account.

This is a Saunders v Vautier issue considered at length in the Lionel Smith article on
massively discretionary trusts, which was, of course, compulsory seminar reading. In a Red
Cross trust like this, the children are merely the objects of a power, so they have greatly
reduced rights compared with beneficiaries – they have no equitable interest, not even
collectively. In terms of enforcing the trust, the rights lie with the Wildlife Association as the
only named beneficiary. So who counts for the purposes of exercising the right to collapse
the trust? One argument is that because the children have no equitable rights and the
Association is the only beneficiary, Saunders means that the Association ought to be able to
collapse the arrangement without anyone else’s consent, though of course, this is wholly at
odds with what R will have intended. The counter-argument is that Saunders ought to
require the agreement of anyone who might benefit under the trust regardless of whether
they are Bs or merely the objects of powers (see dictum of Lord Walker in Schmidt). The
matter is unsettled and really you just needed to identify the issue – if you came down on
one side that was fine so long as you explained why.

Really, really good answers queried whether this kind of trust is even valid in the first place,
at least if the Wildlife Association is not incorporated and so not a legal person. It isn’t clear
whether the arrangement is a charitable trust or a private trust, and surely fails the
requirements for both. Is a charitable trust? The only true beneficiary is a charity, but the
power to appoint the assets to private individuals means that it isn’t exclusively charitable
and so it shouldn’t be valid. But how can it be a non-charitable private trust if the only
beneficiary in the strict sense is a charitable purpose?
4. In 2015, Andrew and Belinda purchased a burger van together from Andrew’s friend,
Chas. Andrew, who Belinda trusted to arrange the deal because she was abroad at the time,
arranged the deal, told Belinda that they would each put up half of the £30,000 purchase
price, but in fact his contribution involved him agreeing to write off a £15,000 debt owed to
him by Chas. This debt was legally unenforceable but Chas had felt morally obliged to
honour it. The burger van has proved to be a successful venture, and has made profits of
£100,000 to date.

It is tolerably clear that A and B are in a fiduciary relationship. Weaker answers suggested
that this is because A and B are business partners, but of course we aren’t given details
about the precise nature of the arrangement. If there is no formal partnership [the
requirements are in s 2 of the Partnership Act 1890 – we didn’t cover this in the lectures or
reading, so no expectation that you were aware of this, though kudos to those who had
done some wider reading] then this looks to be analogous to Murad v Al-Saraj: we have a
joint venture in relation to the acquisition of the van, and the relationship between A and B
is surely one of trust and confidence: B trusts A to arrange the deal while she is abroad and
A is acting as B’s agent in this regard; B also has no knowledge of the nature of the
arrangement between A and C regarding the debt. Assuming there is a fiduciary
relationship one way or the other, the CA held in Murad that representing to your principal
that you are contributing your own money to the purchase of an asset when in reality you
are writing off an unenforceable debt is a breach of duty. On the basis that A did not
contribute anything further to the acquisition of the van, B might reasonably claim all A’s
profits a la Boardman v Phipps. Although there is no secret commission here, FHR European
Ventures v Cedar Capital confirms that any benefit acquired by an agent in breach of
fiduciary duty is held on constructive trust, and so B is not limited to a personal claim. Some
answers tried to argue that not all of A’s share of the profits made over the next 7 years
ought to be seen as derived from the breach (the Warman v Dwyer point considered but
rejected in Murad) or that there should be a deduction for A’s time and effort running the
business (as in Boardman) but in this case (like the defendant in Murad and unlike the
solicitor in Boardman) A has not acted bona fide.

From his £50,000 share of the profits, Andrew used £20,000 to pay off the mortgage on the
house he co-owns with his partner, George, and donated a further £20,000 to charity. He
gave the remaining £10,000 to his brother, Tim as a 50th birthday present. Tim paid this
money into his current account, which already contained £20,000. The next two
transactions on the current account were, first, when Tim withdrew £10,000, which he
spent on a second-hand car, and, second, when Tim withdrew a further £15,000, which he
invested in a painting that he recently sold for £60,000.

On the basis that A’s profits are held on constructive trust for B, the remaining part
comprises straightforward tracing issues:

£20,000 used to pay off the mortgage: we can use subrogation and Primlake confirms that
George’s presence as co-owner is not a bar to this.

£20,000 donated to charity: we need to know more. Is it one charity or many? Donating to
a charity does not count as dissipation, as a charity is not Equity’s darling, but the charities
themselves may have dissipated the money by spending it on their charitable endeavours.
In that situation, there is nothing on the facts to suggest personal claims against the
charities or their Ts, as there is no obvious unconscionability (Akindele). If the money has
not yet been spent, or has been spent on valuable assets, then answers might speculate as
to what proprietary claims in the money or its traceable proceeds might be brought.

£10,000 to Tim: nothing on the facts suggests that T has the requisite mental state for a
personal claim in receipt as again there is no obvious unconscionability (Akindele). In terms
of tracing – the money goes into a current account containing £20,000 so FIFO applies
(Clayton’s case). This means £10,000 withdrawn to buy the car comes from T’s own money,
and the remaining £10,00 from T goes into the painting. This leave B tracing £5,000 into
the painting and claiming 1/3 ownership of this, plus claiming the remaining £5,000 in the
account.

Answers might query if this is fair and suggest splitting the car, the £5,000 and the painting
proportionately – i.e. 1/3 for B and 2/3 for T – but this doesn’t look to be the sort of mixing
where departure from the Clayton’s case default is appropriate, as the parties never
anticipated sharing losses and gains (cf the common investment fund cases).

Stronger answers might have considered (a) what if T was a wrongdoer who knew about the
breach of duty – if so, we would not apply FIFO but cherry pick (Shalson v Russo). In this
case, we will still want T’s £10,000 to go into the car as this will have depreciated, but we
will want all B’s money to have gone into the painting with just £5,000 from T’s money, so B
can claim 2/3 ownership instead. The money left in the account would then belong to T.
They might also have considered (b) whether B might be limited to a lien over the painting
to recover her contribution to the purchase price, rather than co-ownership, if T can
demonstrate that he would still have bought the painting with his own money had he not
received the gift from A: no case law on this point but discussed in class and in Hayton &
Mitchell.

Lastly, answers should of course have noted that if any of the profits under the constructive
trust are not recoverable, A is still personally liable to account to B.

ESSAY QUESTIONS

Hopefully all four of the essay-type questions below were self-explanatory starting points
for discussion. There are a few suggested lines of inquiry below, but as ever with essay
questions there was no one correct approach when answering: some of the best answers
took the questions in unexpected directions. In general we were looking for depth of
analysis rather than breadth, but you needed to justify any chosen focus and ensure that
the bigger picture was not lost. We generously rewarded those that actually answered the
question rather than those who simply wrote around it, and especially those that answered
in a novel way while remaining relevant.

5. ‘I take the law of this Court to be well settled, that in order to render a voluntary
settlement valid and effectual, the settlor must have done everything which, according to
the nature of the property comprised in the settlement, was necessary to be done in order
to transfer the property and render the settlement binding upon him.’

To what extent does this observation of Turner LJ in Milroy v Lord (1862) 45 ER 1184 reflect
the current law?

A straightforward question that calls for a general discussion of the principle that equity will
not perfect an imperfect gift – cases such as Milroy v Lord, Re Fry, Jones v Lock and Richards
v Delbridge – and the various exceptions to it, such as: the rule in Re Rose as extended;
after-acquired property (e.g. Re Brooks); fortuitous vesting of trust property (Strong v Bird
etc; Re Ralli); secret and half-secret trusts (answers that cover this should ensure that they
avoid significant overlap with any discussion in Q2); deathbed gifts (ditto); the benignant
construction in Choithram v Pagarani. They might also contrast voluntary settlements with
equity’s treatment of the purchaser for value, whom it is generally happy to assist. The key
thing was for the students to avoid merely descriptive answers and give us some critical
analysis; one way of doing this might be to consider whether the law is ”well settled” one
way or the other – they might consider e.g. how a case like Pennington v Waine arguably
raises more questions than it answers with the introduction of unconscionability to the rule
in Re Rose; or how the theoretical basis of secret and half secret trusts (which wasn’t
relevant to Q2 and so is fair game) is unresolved.

6. ‘Section 1(1) of the Trustee Act 2000, like the prudent man of business standard before it,
can be criticised for merely setting minimum standards of performance, penalising only the
grossly incompetent, and offering no inducement to seek a high financial return.
Consequently, a settlor’s best protection for the trust fund would seem to lie in the quality
of persons she selects as trustees.’

Critically discuss the above statement.

This calls for a critique of the statutory duty of care in the context of investments. Answers
might have considered e.g. the relationship between s 1(1) and the prudent man of business
standard – the former codifies the latter but confirms that the standard can be raised for
professionals etc (which was probably the case at common law but technically unsettled);
the extent to which the standard of care is appropriate; the difficulties in holding Ts to
account in cases like Nestle, and whether the rules encourage inaction; the fact that s 1(1)
needs to be read in light of the rest of the TA 2000 provisions, e.g. s 4’s standard investment
criteria; the problems in leaving matters to the discretion of carefully chosen Ts when those
Ts might be replaced in the future.

7. ‘The liability of a third party for another’s breach of trust should always be fault-based.’

Critically discuss the above statement.

Here you should have considered the arguments for and against fault-based personal
liability, and discussed the knots that the courts have tied themselves in trying to determine
the requisite mental element for assistance-based and receipt-based claims in Tan,
Twinsectra, Eurotrust, Akindele etc. You might also reasonably flip the question around and
consider the arguments for and against receipt-based liability as an alternative, considering
e.g the basic idea behind an unjust enrichment claim; the fact that the common law permits
strict liability claims (Lipkin Gorman) and the maxim that equity follows the law; the existing
equitable receipt-based claims, e.g. Re Diplock and subrogation; the support for receipt-
based liability in Dubai Aluminium v Salaam. Very strong answers found space to consider
both.

8. ‘Given its versatility, thinking of the trust as an individual concept is misleading. It is

Critically discuss the above statement.

This merits a critical analysis of the extent to which equity does / should have different rules
for different trusts in different situations. You could cherry pick from the whole course here
but the two most obvious contrasts that might be made are between public and private
trusts (why there are various rules that don’t apply to charitable trusts, e.g. the rule against
perpetuity and certainty of objects; why are charitable trusts also subject to their own
special rules and regulatory body) and between traditional family settlements and modern
commercial arrangements (should rules created in the context of the former always apply to
the latter e.g. Target Holdings and Mark Redler; tracing mixtures; bare trusts v active duties
etc etc). We don’t cover pension trusts but if you had done some wider reading you could
have contrasted these with traditional trusts – pension trust Bs have greater protections
than normal Bs, justified because they are not mere volunteers.