Commonwealth Caribbean Trusts Law 2nd edition by Gilbert Kodilinye

By Gilbert Kodilinye

This e-book examines the appropriate Caribbean laws and case legislations including the final rules of trusts legislations as utilized within the English courts and different Commonwealth jurisdictions.

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There is no justification for the intervention of equity. The settlor has allowed the trust money to be treated as if it were customers’ money, ie belonging absolutely and beneficially to the trustee bank. He has accepted the risk of the bank’s insolvency. The trust money has become that bank’s property to use in any manner that it thinks fit. Co-existence of debt and trust It is possible for a debt and a trust to co-exist, as is illustrated by Barclays Bank Ltd v Quistclose Investments Ltd. In this case, Rolls Razor Co, which had a large overdraft at Barclays Bank, borrowed £209,719 from Quistclose to pay dividends declared on its (Rolls Razor’s) shares.

A dispute arose between the parties and the plaintiff left the house. She then claimed to have acquired a beneficial interest in the home by virtue of her contribution. The Lords Justices in the Court of Appeal were unable to agree as to whether the money had been advanced by way of loan or whether it gave rise to a resulting or constructive trust. Cairns LJ held that the transaction was a loan; Lord Denning held that it was not; Phillimore LJ suggested that it ‘might be’ a loan. The ultimate and majority decision was that the payment gave rise to a constructive trust, as it would be inequitable for the couple to deny that the mother-in-law had an interest in the property; but, to confuse matters, Phillimore LJ (with whom Cairns LJ disagreed on this point) took the view that a resulting trust could arise even if the transaction was one of loan.

For example, S may bequeath $50,000 to D ‘with power to appoint to such of the nieces and nephews of X as D shall think fit, and, in default of such appointment, to A, B and C in equal shares’. Since a trust imposes an imperative obligation on trustees, where D holds property upon trust to divide amongst a specified class of beneficiaries (for example, the children of X) as he thinks fit, D is under a binding duty to carry out the trust by making the division, and if he fails to do so, the court will divide the property amongst the class.

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