Friday, January 31, 2020
Equity & Trusts Essay Example for Free
Equity Trusts Essay Answer: Introduction: In order to create a valid trust, it is necessary to have three certainties of trust, formalities, and perfect constitution. A trust will be perfectly constituted where the rights, which are to form the subject matter of the trust, are vested in the intended trustee. In Knight v Knight[1] Lord Langdale, a private express trust cannot be created unless three certainties are present; these are certainty of intention, certainty of subject matter and certainty of beneficiaries. Settlors specify the number of beneficiaries to create fixed trust, for example a trust in favour of ‘my children’.  In Vandervell v IRC[2], Vandervell’s bank held the legal title to shares on a resulting trust for him and, upon his instructions, transferred them to the Royal College of Surgeons (RCS). The IRC argued that (1) Vandervell had made a valid transfer of the stock to the RCS, despite disposing of his equitable interest without writing, and (2) he had a beneficial interest in the option to purchase, which was extremely valuable. Consequently Vandervell had substantially increased his tax liability. As to (1), it was held that an instruction to transfer the legal title out of a trust completely did not amount to a disposition of an equitable interest, so s. 53(1)(c) of the LPA 1925 did not bite. For (2) and this is the really twisted thinking because Vandervell did not intend to make an outright gift of the benfits that would follow from the exercise of the option to purchase the company stock, he must have intended the trust company to apply those benefits for somebody else. Certainty of intention: Intention is important to create a valid trust. Technical words are not required. The question is whether, on the proper construction of the words are used, the settlor or testator has shown an intention to create a trust and conversely, the use of the word trust does not conclusively indicate the existence of a trust. A precatory expression of hope or desire, or suggestion or request, is not sufficient. Certainty of subject matter: Testamentary gifts have failed where they concerned â€Å"the bulk of my estate,†or â€Å"such parts of my estate as she shall not have sold†or â€Å"remaining part of what is left†or all of my other houses†. In Hunter v Moss, the CA held that a declaration of trust of 50 shares from a holding of 950 did not fail for uncertainty of subject matter. Certainty of beneficiaries: A trust may fail for uncertain beneficiaries. Therefore, the trustees need to be able to identify who the beneficiaries should be, certainty of objects. The requirement for the existence of identified beneficiaries is called the ‘beneficiary Principle’. The ‘beneficiary Principle’ states that a valid trust must be for the benefit of ascertainable individuals- the trust must have beneficiaries. In consequence, equity will not countenance a trust to carry out a purpose since the benefits of carrying out a purpose are not owed to any specific individuals. Hence, the principle is also framed as the ‘no purpose trust’ rule. The ‘beneficiary Principle’ states that a valid trust must be for the benefit of ascertainable individuals- the trust must have beneficiaries. The first objection may be seen in a celebrated dictum of Sir William Grant M.R. in Morice v Bishop of Durham[4]. Every trust has an obligation. [Margaret wilkie Rosalind, Equity Trusts, (2004 -2005), Press. pg 19] This rule similar to ‘privity’ rule of contract law; only parties of the contract may enforce it; even though some third party may benefit from the performance of a contract, that factual benefit alone gives him no interest under the contract, and thus no right to enforce it. In Re Astor’s Settlement Trust[5], Lord Astor purported to create a trust for ‘the maintenance of good understanding between nations and preservation of the independence and integrity of newspapers.’[Ramjohn M. Unlocking Trusts, (2005) Pg 228]. The court held that the trust was void for uncertainty on the ground that the means by which the trustees were to attain the stated aims were un specified and the person who was entitled, as of right, to enforce the trust was unnamed. In the other words, a trust creates rights in favour of the beneficiaries and imposes correlative duties on the trustees. If there were no persons with the power to enforce such rights, then equally there can be no duties imposed on trustees. In IRC v Broadway Cottages Trust[6], it was held that for a trust to be valid the trustees must be able to draw up complete list of the beneficiaries. They had to overcome any conceptual or evidential uncertainties that might arise and locate all the beneficiaries, since otherwise the trust fund could not be properly distributed. It has been recognised, however in Re Gulbenkian[7] and McPhail v Doulton[8] that this test is very appropriate for fixed trusts, but creates unfair and unjust results for discretionary trusts. The nature of a discretionary trust is that allows the trustees to make a reasonable choice between the beneficiaries, and the strict application of the test would be defeat the trust and settlers intention where the majority of the beneficiaries were clearly identified and located but some of them were not. Although the trustee would be able to make a reasonable selection, the ‘complete list’ test would invalid the trust. Lord Wilberforce recognised this as unsatisfactory while giving judgment in McPhail v Doulton: When settlors create discretionary trust, the trustees are required to exercise their discretion to select the beneficiaries from among a class of objects and/or determine the quantum of interest that the beneficiaries may enjoy. The modern test for certainty of objects in respect of discretionary trusts is known as the ‘individual ascertain ability’ test, or the ‘is or is not’ test, or the ‘any given postulant’ test. This test was laid down by the House of Lords in McPhail v Doulton (sub nom Re Baden) and Re Gulbenkian[9]. The test is very appropriate for fixed trusts, but creates unfair and unjust results for discretionary trusts. Although the trustee would be able to make a reasonable selection, the ‘complete list’ test would invalid the trust. Lord Wilberforce recognised this as unsatisfactory while giving judgment in McPhail v Doulton (1971):   ‘The basis for the Broadway Cottages principle is stated that to be that a trust cannot be valid unless, if need be, it can be executed by the court and the court can only execute it by ordering an equal distribution in which every beneficiary shares.’ A new test has been adopted for power and discretionary trusts. This test means that ‘the power will be valid if it can be said with certainty whether any given individual is or is not a member of the class and the power does not simply fail because it is impossible to ascertain every member of the class according to in McPhail v Doulton. In case of Re Hay’s Settlement Trusts[10] the trust may be valid although identify of all the objects is not known. In the case of wide-ranging discretionary trust and the trustee has applied his mind to the ‘size of the problem’ should he then consider in individual cases whether, in relation to other possible claimants, a particular grant is appropriate. In Re Barlow’s Will Trusts[11], the testatrix, by her will, directed her executor to sell her collection of valuable paintings subject to the provision that ‘any member of my family and any friends of mine’ be allowed to purchase any of the paintings at a catalogue price complied in 1970. The executors applied to the court to ascertain whether the direction was void for uncertainty and guidance as to the appropriate method for identifying members of the testatrix’s family. [Hanbury Martin, Modern Equity, 17th Edition, (2005), Pg 95] The Court held that the direction as to ‘friends’ was valid, for the properties were to be distributed in specie and quantum of the gifts did not very with the class. Despite the expression ‘friends’ being conceptually uncertain, the transfer by will amount to a series of individual gifts to persons who satisfied a specific description. The court also gave a guideline on the identification of friend’s family. These are as follows: The relationship with the testatrix was required to be a long standing, The relationship must have been social as opposed to business or professional’, When circumstances permitted, they met frequently. The expression ‘family’ meant a blood relationship with the testatrix. A â€Å"friend†was a person who had a relationship of long standing with the testatrix, which was a social as opposed to a business or professional relationship, and who had met her frequently when circumstance permitted For the benefit of all assiduous lawyers working within the European Union’ are conceptually or sufficiently certain and it is possible to make a complete list of lawyers. However, the list will be too large, so it is possible to fail the trust. The court was prepared to assume that ‘inhabitant’ was sufficiently certain, but held the trust void for administrative unworkability as a class was far too large. In Re Denley’s Settlement Trusts[12], Goff J upheld a trust under which a piece of land was to be used as a recreation ground for the employees of a particular company. Goff J regarded the Subsequent commentary on the case has tended to treat the case as merely one of a particular kind of discretionary trust according to Re Grant’s Will Trusts [13], or as a trust for persons with the purpose being treated merely as a â€Å"superadded†direction or motive for the gift Re Lipinski’s Will Trusts [14]. Thus, the case appears to have been read to deny that it represents a true departure from the beneficiary principle. In Re Lipinski’s will Trusts[15] however; Oliver j followed the principle of Re Denley’s Trust Deed by finding that although a trust for the erection of buildings of the hull Judeans (Maccabi) Association was expressed as a purpose trust. It was in fact for the benefit of ascertainable individuals, namely, the members of the club, and he therefore held the trust to be valid. It was argued that because the testator had made the gift in memory of his late wife, this tented to perpetuity and precluded the association members for the time being from enjoying the gift beneficially. Oliver J rejected this argument. Applying the principle of Re Lipinski’s Will Trusts to this disposition therefore, it might well not fail for certainty of objects. In Re Endacott[16], a testator transferred his residuary estate to the Devon Parish Council ‘for the purposes of providing some useful memorial to myself’. The trust was failed for uncertainty of objects. In Pettingall v pettingall [17], the testator’s executor was given a fund in order to spend â‚ ¤ 50 per annum for the benefit of the testator’s black mare. On her death, any surplus funds were to be taken by the executor. The court held that in the view of the willingness of the executor to carry out the testator’s wishes, a valid trust in favour of the animal was created. The residuary legatees were interested not in the validly of the gift in its failure. In Re Dean[18], the testators directed his trustees to use â‚ ¤ 750 per annum for the maintenance of his horses and hounds should they live so long. It was held that the trust was valid. In Re Kelly[19], the court took the view that lives in being were required to be human lives. In any event, the court is entitled to take judicial notice of the lifetime of animals. In Re Haines, The Times, 7th November 1952, the court took notice that a cat could not live for no longer than 21 years. In Re Thompson[20], the Pettingall principle was unjustifiably extend to uphold a trust form the promotion and furtherance of fox hunting. A trust for the building of a memorial or monument in memory of an individual is not charitable, but may exist as a valid purpose trust if the trustees express a desire to perform the task. In Mussett v Bingle,[21] a testator bequeathed â‚ ¤ 300 to his executors to be used to erect a monument to the testator’s wife’s first husband. The court held that the gift was valid. Similarly, a gift for the maintenance of a specific grave or particular graves may be valid as private purpose trusts but additionally the donor is required to restrict the gift within the perpetuity period, otherwise the gift may be invalidated. In Re Hooper [22], a bequest to trustees on trust to provide ‘so far as they can legally do so’ for the care and upkeep of specified graves in churchyard was upheld as a private trust. The perpetuity period was satisfied by the phase ‘so far as they can legally do so’. Conclusion: Theoretically, according to general rule all four stages required to transfer to be completed before the trust was upheld but practically this principle is relaxed now. To honour the intention of settlor and protect unconscionability, equity use the maxim that equity will perfect an imperfect gift and equity regards, as done that which ought to be done. Bibliography: Hanbury Martin, Modern Equity, 17th Edition, (2005), London: Sweet Maxwell, Pg 95-116 Penner, J. E. The Law of Trusts, 4th Edition, (2004), London: Butterworths, Pg 103- 137 Ramjohn M. Unlocking Trusts, 1st Edition, (2005), Hodder Stoughton, Pg 25-45, 227-236 4)        Margaret wilkie Rosalind, Equity Trusts, (2004 -2005), Oxford University Press. pg 18-36 [1]             (1840) All ER, 3 Beav 148, Ramjohn M. Unlocking Trusts, (2005), Pg 25 [2]             [1967] 2 AC 291, HL [3]             (1994) 1 WLR 452, Margaret wilkie Rosalind, Pg 25-45 [4]         (1804), 9 Ves 399, ER 656, Ramjohn M. Unlocking Trusts, (2005), Pg 228 [5]             (1952) All. ER 1067 Ch 534, Penner, J. E. The Law of Trusts, (2005), Pg 25-45 [6]             (1955) HL, Ch 20 Ramjohn M. Unlocking Trusts, (2005) Pg 37, 38, 42-44 [7]             (1970) AC 508, Penner, J. E. The Law of Trusts, 4th Edition(2005), Hodder Stoughton, Pg 25-45 [8]             (1971) AC 424, Ramjohn M. Unlocking Trusts, 1st Edition, (2005) 39, 42, 115, 122 [9]             (1970) AC 424, Margaret wilkie Rosalind, Equity Trusts, (2004 -2005), [10]           [1982] 1 WLR Penner, J. E. The Law of Trusts, (2004), Pg 103- 137 [11]           (1979) 1 All ER 296 Hanbury Martin, Modern Equity, 17th Edition, (2005), Pg 95-116 [12]           (1969), WLR 457, 1 Ch 373, Ramjohn M. Unlocking Trusts,(2005) pg 233, 243 [13]           [1979] ALL ER 359, Ramjohn M. Unlocking Trusts,(2005) pg 240 [14]           [1976] W.L.R 522, Ch 253, Hanbury Martin, Modern Equity, 17th Edition, (2005) [15]           [1976] W.L. R 457, Ch 235, Hanbury Martin, Modern Equity, 17th Edition, (2005) [16]           (1960) W.L.R. 799 Ch 232, Penner, J. E. The Law of Trusts, (2004), Pg 103- 137 [17]           (1842) 11 Lj Ch 176, Hanbury Martin, Modern Equity, (2005), Pg 95-116 [18]           (1889) All ER, 41 Ch D 552, Margaret wilkie Rosalind, Equity Trusts, (2004 -2005), 23 [19]           [1932], IR 255, Margaret wilkie Rosalind, Equity Trusts, (2004 -2005) pg 19 [20]           [1934] CA, Ch 342, Hanbury Martin, Modern Equity, (2005), Pg 95-116 [21]           [1876] WN. 170, Penner, J. E. The Law of Trusts, (2004), pg. 280 [22]           [1932] WLR. 327 1 Ch 38, Ramjohn M. Unlocking Trusts, 1st Edition, (2005), pg. 232 235
Thursday, January 23, 2020
Creation and Evolution, which do you believe? Essay -- Philosophy, Ori
When thinking about the origin of life, there are two main points one can come to, Intelligent Design or Natural Process (Ken Ham, 2008). â€Å"According to the former view, supernatural intervention was essential for the creation of life; according to the latter, living organisms could form spontaneouslyâ€â€for example, from the mud of the Nile†(Encyclopedia of Philosophy, 2006). Creation can be defined as the original bringing into existence of the universe by God (â€Å"Creation†, n.d.). Intelligent design can be defined as â€Å"certain features†(Ken Ham, 2008). Intelligent Design can also be explained by finding features of the earth and explaining them by an intelligent cause ("Intelligent Design", n.d.). Creationism usually starts with religious text and trying to see how science fits with it ("Intelligent Design", n.d). Creation and Intelligent Design are both similar in the way of people believing that there was a purpose in the creation of people (Orgel, Leslie E, 2006). Evolution can be defined as â€Å"Change in the gene pool of a population from generation to generation by such processes as mutation, natural selection, and genetic drift†(â€Å"Evolution†, n.d.). â€Å"Through the process of descent with modification, the common ancestor of life on Earth gave rise to the fantastic diversity that we see documented in the fossil record and around us today. Evolution means that we're all distant cousins: humans and oak trees, hummingbirds and whales†(Orgel, Leslie E, 2006) There are two types of evolution, micro and macro. Microevolution is the small change of a species over time (Orgel, Leslie E, 2006). Macroevolution means the big change of a species over time, such as stability and through extinction (Orgel, Leslie E, 2006). This paper will dis... ...ll changing and are still being modified, how so? It says that God created everything in 6 days, not over long periods of million and billions of years. God designed us as organisms in six days, no more any less. In Conclusion, believing in creation affects how one looks on the world and the life that inhabits it. Knowing that God working as Intelligent Designer makes one think that we are put here for a purpose and that each and every one of us has a determined purpose, not that we are accidents. Also believing in creation affects how one could view others, knowing that everyone was created by a designer, one would know that people are not accidents or mistakes. Knowing that creation is the truth and that God created everything one would know that not only humans but the world itself was also created with a purpose, not from some mistake or massive explosion.
Wednesday, January 15, 2020
King Lear Essay
The portrayed role of King widely varies between Shakespeare’s ‘King Lear’ and Sophocles’ ‘Oedipus Rex’ as each has very different approaches to the position. As the plays continue however we can also draw similarities between Oedipus and King Lear. As we begin with the play ‘Oedipus Rex’ we get our first impressions of the Oedipus from the way he addresses his people, we immediately see his paternal leadership coming through as he addresses his people as ‘My children’, this is important to the reader/audience as it helps us see that he takes responsibility and sees importance in protecting his people. He also shows that there is no distance between him and his people when he says ‘I hear prayers for the sick’ this is important as it shows that not only does he hear the calls for help which shows he is in close contact but he also shows he is a hands on King as he reacted to it and is looking to help. We can compare this to the leadership of King Lear who in the opening that the King has a less enthusiastic approach to his kingdom, we learn this from the conversation from Kent and Gloucester, ‘the division of the kingdom’ shows there is far from the closeness that is experienced in Thebes, by dividing the kingdom the King is creating a competitive environment and weakens the nation considerably, this being said we can see that King Lear is not the ideal leader. The next indication of a good king is how his people address him, with the two kings it is very different indeed, by looking at the Priest who acts as the representative of the people of Thebes we learn a great deal. Immediately we can see that the fact the priest has approached the king he as confidence that the calls for help will be heard. The priests use of language is important to understand Oedipus as a king, ‘wallowing aimlessly in a sea of blood’ is an obvious over exaggeration but it also states that they look to the king as a guide, the word wallowing suggests aimless movements, Oedipus is the obvious sense of direction for Thebes, this responsibility is placed upon the king is greatly informing as without reading on we can safely assume the king has before been in the position where he has to direct his kingdom and been successful and has gained the respect and confidence of his people. To measure Oedipus’ leadership we can again compare it to that of King Lear, immediately we have seen his wishes to split his country and his terminology ‘our darker purpose’ suggests secretive acts from his people and that he has ulterior motives. We also see that Lear is planning for his early retirement, this is another indication of a poor King, it was strongly believed that Kings were appointed by God and therefore could only be freed of the burden by God, a King who makes actions to give up his role is acting not only against his people but also his faith, this highlights the scale of his selfishness and terrible leadership. Language is of high relevance to the portrayal of Oedipus as a King, the praise directed at him by the Priest is very interesting to note when comparing the two Kings with regards to what is the right and wrong way to rule a kingdom. It becomes clear to the audience that Oedipus adopts a democratic ruling as the priest says ‘if we choose’ in context this is highly respectable as democracy is a fairly modern concept and for Greece and Oedipus to have already created such methods shows great innovation and fantastic consideration for their people. To strengthen the abnormality of giving people choice we only need to look again to the Shakespeare’s King Lear, as he divides his kingdom there is no consideration for people’s choice and wishes, ‘unburthened crawl towards death’ shows his reluctance to face up to his responsibilities as a King to protect his people and keep a united nation, instead he is too besotted with personal gain, he splits his nation without regard for his people but also on a smaller scale he splits his family, ‘which of you shall we say doth love us most? This openly creates conflict, creates divisions between his daughters which is the same effect his choice will have on his kingdom. A further example of Oedipus as a strong king comes when the Priest claims he is good at the ‘business of the state’ and has a mind ‘that touches eternity, not only does this show he is very wise, has knowledge beyond measure but it shows that he does not just enjoy the glamorous aspect of his role, he understands and appreciates the importance of the ‘business of the state’ to the smooth running of his kingdom. This being said however we do learn of a slight irrationality of Oedipus where the audience is told that he sends his brother to look to the Gods for answers as to what he should do, despite the fact he operates a particularly strong democratic system for its time and has the people of Theses backing with every word and decision it seems highly surprising he leaves decisions to fate. This particular area is the only common ground that can be found between Oedipus and King Lear, even though King Lear blatantly shows little logic, as can be seen where he divides his kingdom in attempt to bring it together. Another example of his lack of reason and logic shows itself as he first banishes his youngest most loved daughter Cordelia as he coldly says she is ‘a stranger to my heart’, this is a prime example of the weak King but also character Lear is, as both a king and father he enjoys the flattering as he demands the daughters to tell him who loves him more and when he hears an answer which he doesn’t like he reacts irrationally and banishes Cordelia from his Kingdom that he was once willing to give the larger share to only if she flattered him. Similarly, a voice of reason and logic comes through Kent but he is halted by King Lear as he threatens Kent with his life by saying ‘Kent, on thy life, no more’ again this is an example of his poor skills when in confrontation, Kent tries to make King Lear see sense but by saying something he doesn’t want to hear he is threatened with his life. There are many techniques used by both Shakespeare and Sophocles which both display examples of ruling, from the democratic Oedipus to the irrational leadership of King Lear.
Tuesday, January 7, 2020
Essay about Business Ethics Issues in the Movie Boiler Room
Business ethics issues in the movie â€Å"Boiler room†Business comprises principles and standards that guide behavior in the world of business. Stakeholders-investors, customers, interest groups, employees, the legal system, and the community often determine whether a specific behavior is right or wrong, ethical or unethical. Judgments of these groups influence society’s acceptance or rejection of a business and it’s activities. Every business has a social responsibility toward society. That means to maximize positive affects and minimize negative affects on the society. Social responsibilities includes economic-to produce goods and services, that society needs at the price, that satisfy both-business and consumers, legal†¦show more content†¦Issues related to fairness and honesty often arises in business, because many participants believe that business is a game or o warship and has his own rules. The movie â€Å"Boiler room†was a good example of the company, which doesn’t believe in such thing as business ethics. In the beginning of the movie we see our main character â€Å"running†a home casino, which is not legal, but it is not such a big ethics issue. I think gambling is just passing time just like other hobbies. Nobody was promoting it or forcing people to come and gamble. Costumers chose to come themselves and had a good time, nobody was complaining. There was the only problem, the establishment was illegal, so the â€Å"owner†put himself to risk, and if he will get caught he will go to jail. In my opinion, this part of the movie did not have business ethics issue. I think all the problems began then our guy started the new carrier as a broker in unknown brokerage firm. The institution there he started his carrier as a stock investment broker had no such thing as business ethics. The place did not look right from the beginning. First of all bosses where rude to employees. 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