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Published: Fri, 02 Feb 2018
Common law in comparison to equity law
In comparison with common law in which boundaries, regulations and rules can be found , equity is different with no solid structure and this is because to its historical background . Trust, is controlled by the laws of equity and it arises from common law which is very often in a challenge and versatile series of events. This situation means complicated areas from topics of formalities, constitution of trusts, and covenants to handle .
Common law is the out come of courts decisions and their interpretation based on their. In the United States the Courts in a way they have created their own law in order to ‘fill the gaps’ that exist .In the UK though Courts interpret the law their own way and do not make their own law as in the US.
There is Equity when there is a lack of Common Law to apply the rules and there is a problem with the ruling which does not make any sense with the result to become to equity. This outcome , the equity is not a legal right but an option to s solution. A example of such a case is going to equity involves the sale of land and having the court ordering the sale. Injunctions are a different example of such equity decisions as damages may not address the issue.
Equity is in simple words the system of law designed to offer remedies for wrongs which for any reasons are not legally recognized under the common law of England or for which no adequate remedy was provided by the common law.
There are different types of thrust , the express and implied trusts, charitable trusts,, secret trusts and half secret trusts, Quistclose trusts , resulting trusts , constructive trusts .
Equity enforcement of secret trust means accepting evidence of what a person who died wished and his wish was not included in his will which do not comply with the wills act 1837 s9.
In order for a secret trust to be accepted and be valid it should be accepted by the secret trustee, but depending on the timing of the acceptance will be considered fully secret trust or half secret trust. The timing of the acceptance is a very crucial point. If by any chance it is allowed to the secret trustee to withdraw from this agreement is illegal and amount to a fraud on the beneficiaries of that trust and on the deceased, �in that he would not have left property to the secret trustee if the latter had not agreed to the trust�. Such logic explains the equity�s intervention in half-secret trust. In this trust the trustee cannot benefit anything as devisee or legatee.
In the case of McCormick v Grogan we experience fraud on the beneficiary as we see rationale accepted for secret trust while this applies only to fully secret trust.
If by any way the deceased has communicated the secret trust to the secret trustee and this was accepted while he was in life this trust becomes binding and by the law relating to trust and is outside the scope of the Wills Act 1837 as in the case of Blackwell v Blackwell.
Although his is a better explanation of the operation of secret trust it is not entirely satisfactory because the secret trust depends upon the proving of the will for its constitution. This dependence has thrown up some unhappy conflicts in cases where strict adherence to the Wills Act 1837 would have invalidated a secret trust, but the courts have nevertheless been prepared to recognise its existence
It is debatable, for example to what extent a secret trust will be enforceable if the secret trustee predeceases the testator or disclaims the gift under the will, and this may vary according to whether the secret trust is fully secret or half-secret. In the case of a half-secret trust the principle that equity will not allow a trust to fail for want of a trustee would probably apply to save the trust. However , Cozen-Hardy Lj in Re Maddock expressed the opinion that a fully secret trust would fail if the secret trustee renounced or declaimed the gift or died in the lifetime of the testator.
In R Garden (no 2) the beneficiary under a half-secret trust had predeceased the testatrix. This should have resulted in the gift to her lapsing, but Romer Lj held that it went to her personal representatives. Note, however that this decision has been critised. In Re Young , one of the beneficiaries of half-secret trust witnessed the testators will which would have invalidated any gift to him in the will itself. The court held that the legacy was nevertheless valid because the beneficiary took under the trust and not under the will. Many of the decision therefore illustrate the courts willingness to modify the strict requirements of the Wills Act 1837 where necessary to give effect to a secret trust. This suggests that the tendency is indeed to regard secret trust as being governed by the law relating to trust deriving from the agreement between the testator and the trustee. This would mean that they are more properly classified as express trust rather than constructive trust ( A.J. Oakleys opinion) this is not an entirely academic question when it is recalled that s.53(1)(b) applies to the creation of an express trust of land. A contractive trust of land is exempt by s.532)
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