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Question 1
For the last fourteen years Jonathan Reisberg, a successful businessman, has cohabited with his girlfriend Lorraine Lexington on board a large and spacious converted barge moored on a canal near to central London. Lorraine, who is several years younger than Jonathan, recently took a break from her career as a hospital radiologist in order to have their child. In fact Lorraine gave birth to triplets on 16 November 2013, namely Eric, Alfred and Benjamin who are now two years old. As a result Lorraine has been unable to resume her career because of the demands of looking after triplets. Whilst she was working Lorraine had contributed half of her salary towards the running costs of the barge and two years after starting co-habiting with Peter she contributed £65,000 towards structural repairs and decoration of the barge.
In December 2013 Jonathan covenanted with the Reisberg Trustee Co Ltd to settle all property that he might receive under his Uncle David’s will on Lorraine for life with remainder to their children in equal shares. The deed stated that Jonathan undertook ‘to hold the benefit of this covenant on trust for Lorraine and our children (if any) immediately’. In February 2014 Jonathan inherited Greenacre and 500,000 shares in Heavenly City plc (with a current market value of £6 million) from his Uncle David but has forgotten to transfer the shares and convey Greenacre to Reisberg Trustee Co Ltd On several occasions since the birth of the triplets, Jonathan has loudly stated to Lorraine in the presence of witnesses ‘all of my property including our lovely barge home is as much yours Lorraine as it is mine’. At the second birthday party of the triplets Jonathan held up a cheque for £25,000 (payable to Jonathan from his friend Christopher as repayment of a personal loan) exclaiming ‘I endorse (writing an endorsement on the cheque as he spoke) this cheque to my wonderful sons and it shall be invested in long term saving funds for them.’ After the party Jonathan put the cheque into his desk and has since forgotten about it. The party had been recorded on a digital video camera. In May 2014, Pauline Jonathan’s daughter from his marriage to Titiana Borgia- Mafioso (from whom he has been separated for the last 15 years) telephoned to ask her father to help her purchase a house in Manchester whilst she was studying on her 4 year degree course in fashion and design. At the end of the conversation Jonathan said that he would ‘think about it’. He later wrote to Pauline pointing out that he (Jonathan) had already set up a separate trust fund for Pauline held by the Riesberg Trustee Co Ltd and that: “I expect you to stand on your own two feet”. Nevertheless, Jonathan paid £420,000 for a four bedroom terraced property in a desirable part of Manchester which was conveyed into Pauline’s name. Pauline lets three of the bedrooms to student friends using the rental income towards her living costs as a student. Pauline who is now 22 years old is entitled to income under her trust fund on reaching 25 years of age. Jonathan died of a heart attack one month after his sons’ second birthday party. He died intestate.
Advise Lorraine if she and her triplet sons can claim any of Jonathan’s property on the basis of trust law or on any other grounds and advise Pauline whether she is entitled to keep the house in Manchester.
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Answer:
Mentioned below are suitable advises for Lorraine and Pauline in reference to their respective entitlement of the property:
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- Lorraine will be entitled to the property that had been specified with the trust on the ground of trust law. Trust law states the law where the property is held under the trust by one party to give it to another party. Creation of the trust stays in the hand of settlor, in this case, Reisberg Trustee Co Ltd.
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- Pauline will be entitled to the house that had been mentioned under the name of Pauline by Jonathan.
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- The trust established by Jonathan was in clear intention to provide benefit to the Lorraine and the establishment of the trust followed the formal procedure (Douglas, Pearce and Woodward, 2007). Therefore, though Jonathan failed to form clear will before death, based on the trust, Lorraine was entitled for the property.
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- Certainty of Intention is the major part in the formation of trust that states that the settlor’s intention must be clear. However, as Jonathan clearly showed his intention of giving the share to Lorraine in various public places, therefore, it can be stated obvious that the intention of Jonathan was clear regarding the property (Bright and Blandy, 2015). This results into the understanding that Lorraine should be given the entitlement of the property.
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- Another area that comes under trust is the certainty of subject matter that states the amount of property that has been intentioned to place under the trust.
Question 2
Claud Kayser separated from his wife Messalina in 2002 following her repeated adultery with several other men. As both parties were Catholic there was no divorce. In 2003 Claud started to cohabit with Agrippina Brass. They had two children, and Agrippina adopted the surname Kayser. In September 2014 Claud, who was a wealthy man, took legal advice from James Bodgit of Bodgit & Scarper (Solicitors) in relation to the disposition of his estate on death and possibly mitigating Inheritance Tax. As a result of this advice Claud:
1. Gave Agrippina authority to draw on his bank and building society accounts and wrote a memorandum for her telling her that from now on these "now belong to both of us equally, so that when I die they would belong to you Agrippina"
2. He also executed a share transfer of 2500 of his shares in Kayser Imperial Ltd., a private family company, to Agrippina, and a transfer of the title to his house (title to which is registered) into joint names with Agrippina. He handed both of these to James Bodgit for transmission to the company secretary in the case of the shares and the Land Registry in the case of the house.
3. He wrote to the Mammoth Inequitable Assurance Co. plc. requesting them to change the nominated beneficiary on his life insurance from Messalina to Agrippina. 4. Finally, he gave instructions to James Bodgit to draw a new will, replacing his existing will drawn in 1995 (which appointed Messalina executor of his estate and left her all his property) with one appointing Agrippina as executor and sharing the property between her and their children.
James Bodgit took no action whatever on any of these instructions, possibly because he was already under pressure in relation to the property speculations with client moneys which led to him and his partner being struck off the roll of solicitors and made bankrupt in early January 2016. The Mammoth Inequitable Assurance Co. filed Claud's letter, but owing to a clerical error did not amend the policy schedule or return to Claud the form which, under their rules, was required to change the nominee. Claud was killed in a traffic accident on 31 December 2015; he had written to James Bodgit repeatedly about the progress of his instructions but received only excuses in reply. Discuss the legal issues raised by these facts and advise Agrippina accordingly. In particular can Agrippina bring a successful action against Messalina to establish that the bank and building society accounts, the shares and the land did not form part of the estate passing under the 1995 will and that Agrippina rather than Messalina is entitled to the proceeds of the life assurance. (Liability has been accepted in Agrippina's claim against the Solicitors' Indemnity Fund in respect of James Bodgit's negligence, but the settlement of the amount has been held over pending the present litigation).
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Mentioned below are the discussions related to the case of Agrippina and Messalina:
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- As the law consultants of Claud failed to form any firm contract for the transfer of property from the disposition of Messalina to Agrippina from the 1995, therefore, Messalina will be entitled to the properties assigned under her name referencing the previous contract.
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- On the other hand, as the bank and building society accounts, the shares and the land did not form part of the estate passing under the 1995 that was intended for Messalina, therefore, Messalina has no hold over the properties that formed later and where the name of the Messalina has been mentioned.
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- Moreover, another face of the case can be that as Claud had initiated the procedure of transferring of all the property in the name of Agrippina, and it was the responsibility of James Bodgit and Mammoth Inequitable to further the process (Harris-Short, Miles and George, 2015). Therefore, it can be stated that if both the aforesaid are willing to state the fact and shows the proof of the communication between Claud and Badgit, and Claud and Mammoth, then whole case can turn in the favour of Agrippina and she can get whole of the property.
Question 3
Discuss the extent to which the benefit of a contract may be the subject matter of a trust. Explore the distinction between the equitable rules concerning a ‘spes’ or mere expectation on the one hand and a futures contract on the other.
Answer:
Mentioned below are the points over the extent to which the benefit of a contract may be the subject matter of a trust:
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- The law of trust states that the trustee has to hold the property on behalf of the beneficiary. Moreover, this does not imply in the case of property, it can also be in the case of some specific lessons.
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- The trust states that the party who desire to enforce the contract has to ensure that the property that has been deputed under the trustee can be enforced by the beneficiary to receive the required property.
The major distinction between the equitable rules concerning mere expectation on the one hand and a futures contract on the other hand is that the former is not enforceable by law, while the latter can be enforced if the beneficiary does not receive the stated property or any other services as stated earlier (Britain, 2008).
References
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Bright, Susan, and Sarah Blandy. Researching Property Law. 2015. Print.
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Britain, Great. Housing: Proportionate Dispute Resolution. Law Commission, 2008. Print.
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Douglas, Gillian, Julia Pearce, and Hilary Woodward. A Failure Of Trust: Resolving Property Disputes On Cohabitation Breakdown. 2007. Print.
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Harris-Short, Sonia, Joanna Miles, and Rob George. Family Law: Text, Cases, And Materials. 2015. Print.
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