| 翻訳と辞書 |
| Discretionary trusts and powers in English law ： ウィキペディア英語版 |
Discretionary trusts and powers in English law
Discretionary trusts and powers in English law are elements of the English law of trusts, specifically of express trusts. Express trusts are trusts expressly declared by the settlor; normally this is intended, although there are situations where the settlor's intentions create a trust accidentally. Normal express trusts are described as "fixed" trusts; the trustees are obliged to distribute property, with no discretion, to the fixed number of beneficiaries. Discretionary trusts, however, are where the trustee has discretion over his actions, although he is obliged to act. The advantages of discretionary trusts are that they provide flexibility, and that the beneficiaries hold no claim to the property; as such, they cannot seek to control it, and it cannot be claimed for their debts. A power, or "mere power", on the other hand, is where not only does the holder have discretion over his actions, he has discretion over whether to act in the first place.
==Express trusts==
(詳細はsettlor. Typically, this will be intended to create a trust, but there can be situations in which the settlor's intended actions create a trust accidentally,〔Hudson (2009) p.45〕 as in ''Paul v Constance''.〔() 1 WLR 527〕 The creation of express trusts must involve four elements for the trust to be valid. These are capacity, certainty, constitution and formality. Capacity refers to the donor's ability to create a trust in the first place; generally speaking, anyone capable of holding property can create a trust.〔Edwards (2007) p.90〕 There are exceptions for statutory bodies and corporations,〔Edwards (2007) p.92〕 and minors who usually cannot hold property can, in some circumstances, create trusts.〔Edwards (2007) p.91〕 Certainty refers to the three certainties required for a trust to be valid. These are that the trust instrument must show certainty of intention to create a trust, certainty of what the subject matter of the trust is, and certainty of who the beneficiaries (or objects) are.〔Hudson (2009) p.73〕 Where there is uncertainty for whatever reason, the trust will fail, although the courts have developed ways around this.〔Hudson (2009) p.143-7〕 Constitution means that for the trust to be valid, the property must have been transferred from the settlor to the trustees. For chattels, this can simply be handing the property to them, while transfers of land and shares must be done in writing following certain prescribed forms.〔Edwards (2007) p.100〕
If property has not been transferred, the potential trustees and beneficiaries are volunteers, and an equitable maxim is that "equity will not assist a volunteer"; the courts will not look at the case.〔Edwards (2007) p.106〕 To get around this, the courts have developed exceptions to this rule for situations when the donor has done "all that he could do", the trustees or beneficiaries have acquired the property in a different way, or where the gift was made ''donatio mortis causa''.〔Edwards (2007) p.101〕 Formality refers to the specific language or forms used when transferring property. For chattels, no formal language or documentation is needed, unless it is made as a will.〔Hudson (2009) p.211〕 For land, the transfer must be drafted in line with the Law of Property Act 1925 and the Law of Property (Miscellaneous Provisions) Act 1989.〔Edwards (2007) p.107-8〕 When disposing of an equitable interest, the Law of Property Act 1925 must also be followed; much of the case law in this area has centred on the meaning of "dispose", with many cases involving people attempting to avoid tax.〔Edwards (2007) p.109〕
抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』
■ウィキペディアで「Discretionary trusts and powers in English law」の詳細全文を読む
スポンサード リンク
| 翻訳と辞書 : 翻訳のためのインターネットリソース |
Copyright(C) kotoba.ne.jp 1997-2016. All Rights Reserved.
|
|