Business Law Scotland : Trust Assignment

Business Law Scotland : Trust Assignment Words: 1019

Morris Cause – after the death, the settlement of the property after the death. Second division of types: Public – set up for the interest of public, in general. (Russia, cockish) Private – set up for the benefit of individuals or group of individuals. (Batman Begins) 1 . Creation of Trust Capacity (16 in Scotland)* Declaration of the Trust Transfer of property Must have a valid purpose 1. 1 . Declaration of trust Must announce: Creation and specify the purpose, beneficiaries and trustees.

No “special or technical form of words is needed” McPherson v McPherson curator bones (1894) 21 R 386 per Lord McAllen at p. 387 Q. Is it clear that the trustee intended to bind the trustee to carry out the specified purposes 1. . Transfer Property must vest Declaring self as trustee no need to transfer Morris cause comes into being on death of trustee 1. 3. Valid Purpose / Capacity Trusts can be set up for the protection of the vulnerable For the benefit of the public For collective investment purposes For minimizing tax liability For administering a deceased person’s estate. How/why? 1. . Grounds for Invalidity Void from uncertainty Language must not be vague (Sutherland trust v Sutherland trust (1893)) Ineffective by reason of being overly wide Reasonable person must be able to determine whether or not any given individual is thin or outside the trust Vague purposes Trustees dispose of property’ in such a way or ways as my trustees shall deem best” Allan and others (Shaw -IRS ) (1893) SILT 308 “leaving it only to the trustees to select among those for whom those who form that class the particular recipients of his bounty’ Salvation’s Trustees v Ye 1954 S. C. 440. 1. 5.

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Illegal purposes Criminal purpose – void Bowman v Secular Society Ltd [1917] A. C. 406 Directly prohibited purposes Excessive accumulation of income Contrary to public policy Atkins -IRS v Aitkin 1927 S. C. 374 Appointer: This is the person who can appoint a new trustee or remove an existing one. This person is usually mentioned in the trust deed (or trust contract). Appointment: In trust law, “appointment” often has its everyday meaning. It is common to talk of “the appointment of a trustee”, for example. However, “appointment” also has a technical trust law meaning, either the act of appointing (I. . Giving) an asset from the trust to a beneficiary (usually where there is some choice in the matter??such as in a discretionary trust); or the name of the document which gives effect to the appointment. . Testimonial – after the death of the person, incapacitated 2. Inter Voss – made during one’s lifetime, opposed to testimonial Owner (enjoys extended bundle of rights over his property) – trustee (also has a power of appointment over the property but not the same as Owner) The trustee’s right to do this, where it exists, is called a power of appointment.

Sometimes, a power of appointment is given to someone other than the trustee, such as the settler, the protector, or a beneficiary. As Trustee for (ATE): This is the legal term used to imply that an entity is acting as a rustle. Owns. In Its Own Capacity (CIO): This term refers to the fact that the trustee is acting its Protector: A protector may be appointed in an express, inter Voss trust, as a person who has some control over the trustee??usually including a power to dismiss the trustee and appoint another.

The legal status of a protector is the subject of some debate. No-one doubts that a trustee has fiduciary responsibilities. If a protector also has fiduciary responsibilities then the courts??if asked by beneficiaries??could order him or her to act in the way the court decrees. However, a protector is unnecessary to the nature of a trust??many trusts can and do operate without one. Also, protectors are comparatively new, while the nature of trusts has been established over hundreds of years.

It is therefore thought by some that protectors have fiduciary duties, and by others that they do not. The case law has not yet established this point. Settler: This is the person who creates the trust. Trust deed (or trust contract): A trust deed is a legal document that defines the trust such as the trustee, beneficiaries, settler and appointer, and the terms and notations of the agreement. Trust distributions: A trust distribution is any income (profit) or asset that is given out to the beneficiaries of the trust.

Trustee: A person (an individual, a corporation or more than one of either) who administers (manages) a trust. A trustee is considered a fiduciary and owes the highest duty under the law to protect trust assets from unreasonable loss for the trust’s beneficiaries. In common law legal systems, a trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a settler – trustee (who establishes), who transfers some or all of his or her property to a trustee.

The trustee holds that property for the trust’s beneficiaries. An owner placing property into trust turns over part of his or her bundle of rights to the trustee, separating the property’s legal ownership and control from its equitable ownership and benefits. This may be done for tax reasons or to control the property and its benefits if the settler is absent, incapacitated, or dead. Trusts are frequently created in wills, defining how money and property will be handled for children or other beneficiaries. DOD of the beneficiaries.

The trustee may be compensated and have expenses reimbursed, but otherwise must turn over all profits from the trust properties. Trustees who violate this fiduciary duty are self dealing. Courts can reverse self dealing actions, order profits returned, and impose other sanctions. The trustee may be an individual, a company, or a public body. There may be a single trustee or multiple co-trustees. The trust is governed by the terms under which it was created. In most Jurisdictions, this requires a contractual trust agreement or deed. Inter Voss – during one’s lifetime

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