Overlapping between the Provisions It is possible that a single transaction can be caught by more than of the provisions discussed: A declaration of trust over land might be caught by subsection (a) as well Over Land - as by (b) A declaration of sub-trust over an interest in land might be Over an Interest in land – caught by subsections (a), (b) & (c) Might be caught by an equitable mortgage over land might be Equitable Assignment – caught by (a) and (c) Overlap of (a) and (b) Subsection (a) applies to the creation of in land: legal or equitable interests Adamson (1973) 130 CLR 276 v Hayes When a settler declares a over land, an equitable interest in land is created the – beneficiaries title. Subsection (b) applies to declarations of trust concerning interests in land (A) is given precedence than the less onerous (b). (1990) 95 ALR 615 Department of Social Security v James Mrs James applied for aged pension and his assets were assessed. She claimed her house should not be taken into account as he held it on trust. Subsection (a) does not extend to declarations of trust. Only subsection (b) applies to a declaration of trust over an interest in land. Its requirement of proof in writing could be satisfied by a combination of documents capable being read together. Overlap of (a) and (b) - What is the potential overlap? Subsection (c) applies to dispositions of subsisting equitable interests. It requires that dispositions are done in writing. Subsection (b) applies to declarations of trusts concerning interests in land. Most particularly, they concern sub-trusts and the beneficiary’s declaration of a sub-trust. - When a Disposition of an Subsisting Equitable Interest by beneficiary declares a sub-trust that is, where a beneficiary of a trust over – land declares himself or herself trustee of that beneficial interest for a - stated that The Comptroller of Stamps (Vic) v Howard-Smith declaration of a sub-trust is valid disposition. A settlor can declare a trust over land orally, and later manifest it and prove it in writing (b); but if the beneficiary wants to declare a sub-trust trust over the interest, it must be in writing (c).
Overlapping between the Provisions It is possible that a single transaction can be caught by more than of the provisions discussed: Over Land - A declaration of trust over land might be caught by subsection (a) as well as by (b) Over an Interest in land – A declaration of sub-trust over an interest in land might be caught by subsections (a), (b) & (c) Equitable Assignment – Might be caught by an equitable mortgage over land might be caught by (a) and (c) Overlap of (a) and (b) Subsection (a) applies to the creation of legal or equitable interests in land: Adamson v Hayes (1973) 130 CLR 276 When a settler declares a over land, an equitable interest in land is created – the beneficiaries title. Subsection (b) applies to declarations of trust concerning interests in land (A) is given precedence than the less onerous (b). Department of Social Security v James (1990) 95 ALR 615 Mrs James applied for aged pension and his assets were assessed. She claimed her house should not be taken into account as he held it on trust. Subsection (a) does not extend to declarations of trust. Only subsection (b) applies to a declaration of trust over an interest in land. Its requirement of proof in writing could be satisfied by a combination of documents capable being read together. Overlap of (a) and (b) - What is the potential overlap? Subsection (c) applies to dispositions of subsisting equitable interests. It requires that dispositions are done in writing. Subsection (b) applies to declarations of trusts concerning interests in land. Most particularly, they concern sub-trusts and the beneficiary’s declaration of a sub-trust. Disposition of an Subsisting Equitable Interest by - When a beneficiary declares a sub-trust – that is, where a beneficiary of a trust over land declares himself or herself trustee of that beneficial interest for a - The Comptroller of Stamps (Vic) v Howard-Smith stated that declaration of a sub-trust is valid disposition. A settlor can declare a trust over land orally, and later manifest it and prove it in writing (b); but if the beneficiary wants to declare a sub-trust trust over the interest, it must be in writing (c).
Trusts_Summary.docx