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The Profectional Newsletters
15 June 2018

The Rights of Beneficiaries
Under a Trust and the Variation
of Terms of a Trust
#

Equity
and the Perfection of Gifts
and Constitution of Trusts
#

The Rights of Beneficiaries Under a Trust and the Variation of Terms of a Trust Equity and the Perfection of Gifts and Constitution of Trusts

by
Prof. Steven Gallagher,
Associate Professor of Practice in Law,
Associate Dean (Teaching & Learning),
The Faculty of Law,
The Chinese University of Hong Kong

by
Prof. Steven Gallagher,
Associate Professor of Practice in Law,
Associate Dean (Teaching & Learning),
The Faculty of Law,
The Chinese University of Hong Kong

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Code: EVT000000239 Code: EVT000000241
Date: 6 July 2018 (Friday) Date: 6 July 2018 (Friday)
Time: 09:30 - 12:45
(Reception starts at 09:00)
Time: 14:30 - 17:45
(Reception starts at 14:00)
Venue: Kornerstone Institute
15/F, Hip Shing Hong Centre
55 Des Voeux Road Central
Central, Hong Kong
Venue: Kornerstone Institute
15/F, Hip Shing Hong Centre
55 Des Voeux Road Central
Central, Hong Kong
Level: Intermediate Level: Intermediate
Language: English Language: English
Accreditations: LSHK 3.0 CPD Points Accreditations: LSHK CPD Points being applied for
Admission: Standard Fee: HK$1,780.00
Advanced Booking: HK$1,480.00
(on or before 22 June 2018)

Please call 2116 3328 for details
and Group Discount
Admission: Standard Fee: HK$1,780.00
Advanced Booking: HK$1,480.00
(on or before 22 June 2018)

Please call 2116 3328 for details
and Group Discount
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the Law Society of Hong Kong
for 3 CPD Points, discount ends
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Prof. Steven Gallagher

Steven Gallagher was awarded a first class LL.B.  He was called to the Bar of England and Wales in 2006.  Steven has taught Equity and Trusts, Land Law and Company Law to undergraduates and International Corporate Liquidation and International Corporate Governance to postgraduates in England and Hong Kong.  Steven teaches the Equity and Trusts courses for undergraduate students, the Principles of Equity and Trusts course on the Juris Doctor course and, in 2013, introduced the Principles of Cultural Heritage Law course to the LLM programme at the Chinese University of Hong Kong.  Steven has presented continuing professional development courses for solicitors in Hong Kong on many topics associated with equity.  Steven’s research interests include equity and the law of trusts, cultural heritage law and legal history.

Course Outline:

This 3-hour seminar will provide an introduction to the rules concerning variations of trust terms.  Unless the settlor has retained a power to vary the trust terms for himself or given such power to others, the general principle is that the terms of a trust must be followed and cannot be varied.  The courts have generally been reluctant to interfere with the terms of a trust as long as its purpose is not illegal or against public policy.  There have been doubts that the courts actually have power to interfere with the terms of a trust.  However, the development of special trusts in tax haven jurisdictions which expressly permit the settlor to retain powers of variation or give such powers to others has led to judicial consideration of the nature of variation and the limits of the powers of variation that may be retained or given to others.  The seminar will consider the traditional approach to variation of trusts and more recent developments and issues in Hong Kong and the United Kingdom.

Some of the topics considered in this seminar will be:

  • The obligation to follow the terms of the trust;
  • Beneficiaries’ interests in the trust;
  • The rule in Saunders v Vautier;
  • The Court’s inherent jurisdiction to vary the terms of a trust;
  • The statutory powers of variation;
  • The settlors retention of powers of variation and the donation of such powers to others;
  • What is a variation of the terms of a trust?

Course Outline:

It is a maxim of equity that equity will not assist a volunteer.  As donees and (usually) beneficiaries give no consideration for their gifts or beneficial interests, equity will not recognise a gift or enforce a trust if the donor or settlor has not transferred the subject matter to the donee or trustee in the manner required according to the nature of the subject matter.  This seminar will consider the restrictions equity places on the perfection of gifts and constitution of trusts and the need for certainty.  The seminar will consider the exceptions to these restrictions that have developed in Hong Kong and England such as the rule in Strong v Bird, coincidental receipt of property and recent cases considering the “unconscionability test” in Pennington v Waine [2002] EWCA Civ 227.  Recent Hong Kong cases involving the application of the doctrine of donationes mortis causa and the passing of land as a gift made in the contemplation of death will be considered.

Course objectives:

  • To consider the restrictions equity places upon the perfection of gifts and the constitution of trusts;
  • To examine the relaxation of the rule of perfection and constitution;
  • To examine the judgment in Pennington v Waine and its possible extension as a new principle for perfection of gifts;
  • To examine the rule in Strong v Bird and its limits and overlaps with other doctrine, for example proprietary estoppel;
  • To consider the application of the coincidental receipt principle;
  • To consider the application of donationes mortis causa in Hong Kong.

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#
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