Create an account
Nelson v Greening and Sykes (Builders)
note ths goes against Grainge v Wilberforce in the case of Land.
Where a person who is owner beneficially of property—and legal estate is vested in another as Tee for him—makes a declaration of T, practical effect amounts, or is capable of amounting, to "getting rid of " a T or EQ interest then subsisting. This is not same as saying that as a matter of law, it does get rid of intermediate T. Rather, in case of a T and sub-T of personal property, Tees may decide that as a matter of practicality, it is more convenient to deal directly with B of sub-T. court added that authorities on T of personal property have no application to a case where T property is purchaser's interest in land created by existence of an executory con for sale and purchase.
Alfred COVed with Bertie, his brother, to convey any property he might receive under his father's will > 25000 to B to hold on T for C. COVed with B to X to him his current S on same T. Alfred subsequently received a painting valued at £1,000,000 under his father's will, he failed to convey. He attempted to convey S but X was ineffective because he used a deed rather than a registered X. A refusing to perform either COV. Difference if A dead, he was solvent at his death, B was his residuary legatee, and painting and S were not otherwise disposed of by Alfred during his lifetime?
concerns present and AAP
C could enforce COV herself, and if so, how, and whether it would help her if she could persuade Bertie to sue?
imperfect X, so question was whether this fell within any of exceptions to Milroy v Lord. only possibility would seem to be 'unconscionability' exception in Pennington v Waine, argument perhaps being that it would be unconscionable for A to resile from gift given that to do so would amount to a breach of COV. Of course, this was a COV which EQ will not enforce, so one question would be whether that had any bearing on matter.
NOTE: 'EQ will not assist a volunteer to perfect an imperfect gift.' What this means is, EQ simply will not assist a person to become a B under a T, unless T is fully constituted or if person is already a B, then it would not matter if person provided consideration.
As to alternative at end, this raised correctness of Re Ralli's WT in light of Re Brooks' ST.
Nelson v Greening & Sykes
charge was made on property but Nelson would not comply claiming that on BT person fell out of picture.
dismissed. (1) Authorities such as Saunders v Vautier ,Grey v Inland Revenue Commissioners do not establish that an intermediate Tee ceased to be a Tee as a matter of law, but only that, in case of a T and sub-T of personal property, Tees may decide, as a matter of practicality, that it is more convenient to deal directly with B of sub-T. Moreover, those authorities do not apply to a case where T property is purchaser's interest in land created by an executory con for sale and purchase.
Adam made a written declaration of T of 50 S in a privately held company, with Calvin as sole Tee and Eve as sole B. Adam sent declaration to Calvin, along with a completed share X form and share certificates. Calvin put declaration, X form and certificates in a safety deposit box. Later, Eve orally agreed to sell her interest under T to Troy for £25,000. Troy then orally declared that he held any interest he received from Eve on T for Helen. Helen orally assigned her interest under this T to Sophie. Discuss. What difference, if any, would it make if S were in a public company?
This was a problem question on formalities. clearly no X of S from A to C, but arguably C would hold an interest under a CT under rule in Re Rose, which he would then hold on T for E. C would not drop out of picture so that A held directly on T for E because of Nelson v Greening & Sykes. There are no formalities required for E to make a con to sell her interest under sub-T to T, and because her interest is in S in a private company con will be specifically enforceable (because shares are unique unlike for a public traded company where the contract would not be specifically enforceable), meaning that a sub-sub-T in favour of T, Oughted v IRC notwithstanding. As to T's oral declaration of T in favour of H, this would not amount to a disposition of an EQ interest and so will be valid, despite s.53(1)(c): Nelson v Greening & Sykes. However, H's oral assignment to S will be void for failure to comply with s.53(1)(c). If S were in a public company, then E's con with T is not specifically enforceable, and there will be no CT for T.
Important decision in Nelson v Greening & Sykes, and many were unable to distinguish between an agreement to sell and performance of that agreement. Moreover, many candidates made mistake of thinking that s.53(1)(c) applies to a X of S (presumably because many of s.53(1)(c) cases concern S) and that therefore S passed to Calvin, thereby missing point of question. A simple reading of statute would have prevented such an error.
1. What is a power of appointment?
EQ mechanism which facilitates management and allocation of property. It is a personal mandate given to a person who may in his discretion create or dispose of beneficial interest or proprietary Rs in property which that person does not himself own, and this mandate may be exercised or not.
2. Distinguish between general, special and intermediate (or hybrid) powers of appointment
General powers of appointment are powers which donee may exercise in favour of such person or persons as he please, including himself, as well as in favour of any purpose of purposes as he pleases. (in Re Dilke  1 Ch 34, omission of words "and purposes" after "such person or persons" was considered unimportant) As long as such a power exists, it will generally not be subject to any restrictions or limitation as to mode or manner of its exercise.
special power :only be exercised in favour of certain specified persons,
intermediate or hybrid power: excludes people
3. Distinguish between a special power of appointment and a discretionary trust.
While duty of a Tee to exercise his discretion under a discretionary T is mandatory, donee of a power of appointment may choose not to exercise power at all: a donee asks "shall I exercise power?" and "in whose favour?", while a Tee's only question is "in whose favour?".
Re Hay's Settlement Trusts 
While both Tees and fiduciary donees may owe duties to objects, such as to consider periodically whether or not to exercise power, to consider range of objects of power, and to consider appropriateness of individual appointments, extent of duties owed by a fiduciary donee is much less than that of a discretionary Tee
in McPhail v. Doulton [1971
court would "not normally" compel exercise of a power nor intervene except where powers were exceeded or exercised capriciously, whereas in case of a discretionary T, court would if called upon exercise Tee's discretion "in manner best calculated to give effect to settlor's or testator's intentions". This was so, he explained, because "A wider and more comprehensive range of enquiry is called for in case of [discretionary T] than in case of powers."
in case of a discretionary T, it is debatable whether Bs as a class have an EQ interest in T property, in case of a power, until and unless power is properly exercised, beneficial interest will be suspended.
Re Barlow's Will Trusts: family and friend in a DT will
'friend' could have a wide variety of meaning, minimum requirements were that (a) long standing (b) be a social not business (c) when circumstances allowed, they would meet frequently.
'family' could be construed as any 'blood relation', and only reason in other cases to restrict concept to statutory next of kin had been to save gifts from failing for uncertainty.
Re Manisty, T cannot be capricious
Where settlor gives his or her Tees a power which enables them to take into account all contingencies, court will not strike it down unless it is capricious; that is unless terms of power negative any sensible consideration of objects by Tees. A power will not be uncertain because it is wide in ambit.
court could be persuaded to intervene where a Tee of a discretionary T exercised his power 'capriciously', in a manner which could be said to be "irrational, perverse or irrelevant to any sensible expectation of settlor". By parity of reasoning, he considered that objections to capricious exercise of a power might well be extended to creation of a capricious power, for such a power would 'negative any sensible intention on part of settlor' and therefore negative any sensible consideration by Tees of exercise of power; such was "a power to benefit 'residents of Greater London'
creation of a 'power of appointment' will only be valid if objects of power can be ascertained with certainty
, special powers of appointment, where donee has power to appoint property among a de?ned class of individuals
Please allow access to your computer’s microphone to use Voice Recording.
Having trouble? Click here for help.
We can’t access your microphone!
Click the icon above to update your browser permissions and try again
Reload the page to try again!Reload
Press Cmd-0 to reset your zoom
Press Ctrl-0 to reset your zoom
It looks like your browser might be zoomed in or out. Your browser needs to be zoomed to a normal size to record audio.
Please upgrade Flash or install Chrome
to use Voice Recording.
For more help, see our troubleshooting page.
Your microphone is muted
For help fixing this issue, see this FAQ.
Star this term
You can study starred terms together