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2013년 4월 14일 일요일


Trusts and the Statute of Wills—Creation of Testamentary Trusts
Terms:
Testamentary trust:
Trust that takes effect at the death of the settlor or testator.

Statute of Wills:
States’ modern day statutes governing wills are derived from the English Statute of Wills (1540).
Secret trust:
Where property is devised to a person without any indication on the instrument of transfer that the property is to be held in trust for another person.
Semi-secret trust:
Where the will indicates that property is to be held in trust; however, no beneficiary is designated.
Constructive trust:
A remedial device, created by operation of law, when property is improperly acquired by someone who is not entitled to the property; imposed to cure wrongdoing or prevent unjust enrichment.
Resulting trust:
A resulting trust involves a reversionary interest when the equitable interest in property is not completely or effectively dispose of.
Requirements
A testamentary trust is one that becomes effective at the settlor’s death. To effectively create a testamentary trust, it must be created in a duly executed will. To comply with the Statute of Wills, all the elements of the testamentary trust must be ascertainable from the face of the will and any applicable documents incorporated by reference or facts of independent significance. These elements are:
  • Intention to create a trust;
  • Permissible purpose for the trust;
  • Identification of beneficiaries; and 
  • Existence of trust res.
Example: Rita bequeaths to Todd “in trust for the person who, in Todd’s opinion, has given me the best care in my declining years.” To identify this person, other evidence of acts or events that had significance apart from their effect on the will (i.e. who took care of Rita during her life) can be evaluated. The trust is valid because the beneficiaries are identified and the other elements are met, even though the trustee has some discretion in determining the beneficiaries. See, e.g., Moss v. Axford, 224 N.W. 425 (Mich. 1929).
Example: In 1997, Rita executes a will bequeathing “to Todd in trust for the persons and purposes set out in the writing dated December 31, 1995, and kept in my safe.” If the writing conforms to the requirements for incorporation by reference (e.g., the writing existed at the time of the will’s execution), the trust terms may be supplied by this writing. See, e.g., Koeninger v. Toledo Trust Co., 197 N.E. 419 (Ohio 1934).
Secret trust (semi-secret trusts)
A “secret trust” is where property is devised to a person without any indication on the instrument of transfer that the property is to be held in trust for another person. Rather, on its face, the gift appears to be absolute.
Given this undeclared intention, courts usually allow extrinsic evidence to prove an oral promise by the recipient of a gift to hold the property in trust for the beneficiaries intended by the donor. If this evidence is persuasive, the court will impose a constructive trust (covered in the next section) to prevent unjust enrichment of the devisee. See, e.g., Olsen v. First National Bank, 83 N.W.2d 842 (S.D. 1957).
Example: In Erica’s will, she leaves her penthouse apartment to Bryce, her attorney. Ricardo, Erica’s son, offers evidence in court that before Erica wrote her will, she said to Bryce, “If I leave the penthouse apartment to you, will you promise to hold it in trust for the use of my son Ricardo?” Bryce agreed to this arrangement. The court will evaluate this extrinsic evidence and if it is believable, the court will impose a constructive trust, by which Bryce will be ordered to hold the property for Ricardo’s benefit.
A “semi-secret” trust is where property is to be held in trust; however, no beneficiary has been designated. In most jurisdictions, this type of arrangement is not recognized. As such, the assets go into a resulting trust (covered in the next section) for the benefit of the testator’s heirs. Yet, a few jurisdictions enforce semi-secret trusts. See, e.g., Linney v. Cleveland Trust Co., 165 N.E. 101 (Ohio App. 1928); In re Hartman’s Estate (No. 2), 182 A. 232 (Pa. 1936).
Example: Venus devises the residue of her estate to Nikki, to distribute in her discretion so as “to carry out wishes I have expressed to her or may express to her.” Nikki states that Venus said the money was to be used for poor, aged, infirm and needy people at a mission she operates. Venus’s heirs contend that the trust is too indefinite to be carried out. The court held that the trust was not valid because the trust does not name the beneficiaries or even indicate who the beneficiaries are—a fatal flaw. Also, the court refused to consider extrinsic evidence to clear up this ambiguity. Instead, the assets passed to Venus’s heirs, pursuant to the intestate succession laws. See, e.g., Olliffe v. Wells, 130 Mass. 221 (1881).
©2003 - 2010 National Paralegal College
작성자: 시간:

Trusts and the Statute of Wills—Creation of Testamentary Trusts
Terms:
Testamentary trust:
Trust that takes effect at the death of the settlor or testator.

Statute of Wills:
States’ modern day statutes governing wills are derived from the English Statute of Wills (1540).
Secret trust:
Where property is devised to a person without any indication on the instrument of transfer that the property is to be held in trust for another person.
Semi-secret trust:
Where the will indicates that property is to be held in trust; however, no beneficiary is designated.
Constructive trust:
A remedial device, created by operation of law, when property is improperly acquired by someone who is not entitled to the property; imposed to cure wrongdoing or prevent unjust enrichment.
Resulting trust:
A resulting trust involves a reversionary interest when the equitable interest in property is not completely or effectively dispose of.
Requirements
A testamentary trust is one that becomes effective at the settlor’s death. To effectively create a testamentary trust, it must be created in a duly executed will. To comply with the Statute of Wills, all the elements of the testamentary trust must be ascertainable from the face of the will and any applicable documents incorporated by reference or facts of independent significance. These elements are:
  • Intention to create a trust;
  • Permissible purpose for the trust;
  • Identification of beneficiaries; and 
  • Existence of trust res.
Example: Rita bequeaths to Todd “in trust for the person who, in Todd’s opinion, has given me the best care in my declining years.” To identify this person, other evidence of acts or events that had significance apart from their effect on the will (i.e. who took care of Rita during her life) can be evaluated. The trust is valid because the beneficiaries are identified and the other elements are met, even though the trustee has some discretion in determining the beneficiaries. See, e.g., Moss v. Axford, 224 N.W. 425 (Mich. 1929).
Example: In 1997, Rita executes a will bequeathing “to Todd in trust for the persons and purposes set out in the writing dated December 31, 1995, and kept in my safe.” If the writing conforms to the requirements for incorporation by reference (e.g., the writing existed at the time of the will’s execution), the trust terms may be supplied by this writing. See, e.g., Koeninger v. Toledo Trust Co., 197 N.E. 419 (Ohio 1934).
Secret trust (semi-secret trusts)
A “secret trust” is where property is devised to a person without any indication on the instrument of transfer that the property is to be held in trust for another person. Rather, on its face, the gift appears to be absolute.
Given this undeclared intention, courts usually allow extrinsic evidence to prove an oral promise by the recipient of a gift to hold the property in trust for the beneficiaries intended by the donor. If this evidence is persuasive, the court will impose a constructive trust (covered in the next section) to prevent unjust enrichment of the devisee. See, e.g., Olsen v. First National Bank, 83 N.W.2d 842 (S.D. 1957).
Example: In Erica’s will, she leaves her penthouse apartment to Bryce, her attorney. Ricardo, Erica’s son, offers evidence in court that before Erica wrote her will, she said to Bryce, “If I leave the penthouse apartment to you, will you promise to hold it in trust for the use of my son Ricardo?” Bryce agreed to this arrangement. The court will evaluate this extrinsic evidence and if it is believable, the court will impose a constructive trust, by which Bryce will be ordered to hold the property for Ricardo’s benefit.
A “semi-secret” trust is where property is to be held in trust; however, no beneficiary has been designated. In most jurisdictions, this type of arrangement is not recognized. As such, the assets go into a resulting trust (covered in the next section) for the benefit of the testator’s heirs. Yet, a few jurisdictions enforce semi-secret trusts. See, e.g., Linney v. Cleveland Trust Co., 165 N.E. 101 (Ohio App. 1928); In re Hartman’s Estate (No. 2), 182 A. 232 (Pa. 1936).
Example: Venus devises the residue of her estate to Nikki, to distribute in her discretion so as “to carry out wishes I have expressed to her or may express to her.” Nikki states that Venus said the money was to be used for poor, aged, infirm and needy people at a mission she operates. Venus’s heirs contend that the trust is too indefinite to be carried out. The court held that the trust was not valid because the trust does not name the beneficiaries or even indicate who the beneficiaries are—a fatal flaw. Also, the court refused to consider extrinsic evidence to clear up this ambiguity. Instead, the assets passed to Venus’s heirs, pursuant to the intestate succession laws. See, e.g., Olliffe v. Wells, 130 Mass. 221 (1881).
©2003 - 2010 National Paralegal College
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Secret trust

From Wikipedia, the free encyclopedia
A secret trust is a trust which arises when property is left to a person (the legatee) under a will on the understanding that they will hold the property as trustee for the benefit of beneficiaries who are not named in the will.
Secret trusts are divided into two types:
  • Fully secret trusts, where the will is totally silent as to the existence of a trust; and
  • Semi secret trusts or half secret trusts, where the will provides that the legatee is to hold the property on trusts, but does not specify the terms of the trust or the beneficiary.
Secret trusts are something of a historical anachronism. They arose because in most common law jurisdictions, wills are public documents after they have been admitted to probate, and where the testator wishes to leave a legacy to (for example) a mistress or an illegitimate child without causing pain or embarrassment to his family, he could devise the property to a trusted person to avoid the name of the mistress or illegitimate child appearing in the will. They fall outside of the Wills Act.
Despite their rarity, secret trusts still remain a staple of many law courses at University level, as they represent a rare exception to the rule that any disposition on death must be by way of a will (or a document incorporated by reference into a will) which complies with the applicable statutory requirements in the relevant jurisdiction.[1] Historically, the courts have felt it more important to uphold the rights of the putative beneficiary and to avoid the unjust enrichment of the legatee than to uphold the general rule of public policy that property must devolve by will on death.

[edit]See also

[edit]Footnotes

  1. ^ The other main exception, also a historical anachronism rarely seen in modern times, is a donatio mortis causa
Stub iconThis law-related article is a stub. You can help Wikipedia by expanding it.
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2013년 4월 13일 토요일


Estate in land

From Wikipedia, the free encyclopedia
  (Redirected from Estates in land)
Question book-new.svg
This article does not cite any references or sources. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (January 2008)
Property law
Part of the common law series
Types
Acquisition
Estates in land
Conveyancing
Future use control
Nonpossessory interest
Related topics
Other common law areas
An estate in land is an interest in real property that is or may become possessory[disambiguation needed].
This should be distinguished from an "estate" as used in reference to an area of land, and "estate" as used to refer to property in general.
In property law, the rights and interests associated with an estate in land may be conceptually understood as a "bundle of rights" because of the potential for different parties having different interests in the same real property.

[edit]Categories of estates

Estates in land can be divided into four basic categories:
  1. Freehold estates: rights of ownership
    • fee simple (fee simple absolute)—most rights, least limitations, indefeasible
    • defeasible estate—voidable ownership
    • finite estate—limited to lifetimes
      • life estate—fragmented ownership for duration of someone's life
      • fee tail—inalienable rights of inheritance for duration of family line
  2. Leasehold estates: rights of possession and use but not ownership. The lessor (owner/landlord) gives this right to the lessee (tenant). There are four categories of leasehold estates:
    1. estate for years (tenancy for years)—lease of any length with specific begin and end date
    2. periodic estate (periodic tenancy)—automatically renewing lease (month to month, week to week)
    3. estate at will (tenancy at will)—leasehold for no fixed time or period. It lasts as long as both parties desire. Termination is bilateral (either party may terminate at any time) or by operation of law.
    4. tenancy at sufferance—created when tenant remains after lease expires and becomes a holdover tenant, converts to holdover tenancy upon landlord acceptance.
  3. Statutory estates: created by law
  4. Equitable estates: neither ownership nor possession
    • lien
      • general
      • specific
    • easement
      • easement in gross
      • easement appurtenant
        • ingress
        • egress
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Fee (feudal tenure)

From Wikipedia, the free encyclopedia
  (Redirected from Fief)
This article is incomplete. Please help to improve the article, or discuss the issue on the talk page. (February 2009)
For other uses see Fee (disambiguation)
English Feudalism
Harold Sacramentum Fecit Willelmo Duci
Harold Sacramentum Fecit Willelmo Duci
(Harold makes an oath to Duke William)
King Harold becomes the vassal
of Duke William of Normandy
(Bayeux Tapestry)
Fief
Overlord, Vassal
Enfeoffment
Subinfeudation
Feoffee
Feudal land tenure
Fealty, Homage
Feudalism in England
Feudalism
A fee (Latin: feudum; French: Seigneurie) was the central element of feudalism and consisted of heritable property or rights granted by an overlord to a vassal who held it in fealty (or "in fee") in return for a form of feudal allegiance and service, usually given by the personal ceremonies of homage and fealty. The fees were often lands or revenue-producing real property held in feudal tenure: these are typically known as fiefs or fiefdoms. A list of several hundred such fees held in chiefbetween 1198 and 1292, along with their holders' names and form of tenure, was published in three volumes between 1920 and 1931 and is known as The Book of Fees; it was developed from the 1302 Testa de Nevill. However, not only land but anything of value could be held in fee, including governmental office, rights of exploitation such as hunting or fishing, monopolies in trade, and tax farms. The privilege of minting official coins developed into the concept of seigniorage.
In the 10th and 11th centuries the term "fee" could be used either to describe dependent tenure held by a man from his lord, as the term is used now by historians, or it could mean simply "property". It lacked a precise meaning until the middle of the 12th century, when it received formal definition from land lawyers. The manor was, in effect, a small fief.
Historically the fees of the 11th and the 12th century derived from two separate sources. The first was land carved out of the estates of the upper nobility. The second source was allodial land transformed into dependent tenures. During the 10th century in northern France and the 11th century in France south of the Loire, local magnates either recruited or forced the owners of allodial holdings into dependent relationships and they were turned into fiefs. The process occurred later in Germany, and was still going on in the 13th century.
In 13th-century England, France, Germany, Spain, and Italy the term "feodum" was used to describe a dependent tenure held from a lord by a vassal in return for a specified amount of knight service and occasional financial payments (feudal incidents).
However, knight service in war was far less common than:
  • castle-guard (the obligation of a vassal to serve in a castle garrison of the lord),
  • suit in court (the vassal's obligation to attend the lord's court, to give him counsel, and to help him judge disputes)
  • attendance in the lord's entourage (accompanying the lord when he travelled or attended the court of his lord so as to increase the social status of the lord),
  • hospitality to the lord or to his servants (accommodation).
Sigismund fees the Margraviate of Brandenburg to Frederik, April 30, 1415
A lord in late 12th-century England and France could also claim the right of:
  • wardship and marriage - right to control descent of fee by choosing husband for female heir and guardian of minors (preferably in consultation with heir's closest male adult kinsmen);
  • "aids" - payments to aid the lord in times of need (customarily given to the lord to cover the cost of knighting of eldest son, marriage of eldest daughter, and for ransoming of lord if required);
  • escheat - the reversion of the fief to the lord in default of an heir.[1]
Originally, vassalage did not imply the giving or receiving of landholdings (which were granted only as a reward for loyalty), but by the eighth century the giving of a landholding was becoming standard. The granting of a landholding to a vassal did not relinquish the lord's property rights, but only the use of the lands and their income; the granting lord retained ultimate ownership of the fee and could, technically, recover the lands in case of disloyalty or death.[2]
By the middle of the 10th century, fee had largely become hereditary.[3] The eldest son of a deceased vassal would inherit, but first he had to do homage and fealty to the lord and pay a "relief" for the land (a monetary recognition of the lord's continuing proprietary rights over the property). Henry II transformed them into important sources of royal income and patronage. The discontent of barons with royal claims to arbitrarily assessed "reliefs" and other feudal payments under Henry's sonKing John resulted in Magna Carta of 1215.
Eventually, great feudal lords sought also to seize governmental and legal authority (the collection of taxes, the right of high justice, etc.) in their lands, and some passed these rights to their own vassals.[3]
In northern France in the 12th and 13th centuries military service for fiefs was limited for offensive campaigns to 40 days for a knight. By the 12th century English and French kings and barons began to commute military service for cash payments (scutages), with which they could purchase the service of mercenaries.[1]

[edit]See also

[edit]References

Wikisource has the text of the1911 Encyclopædia Britannicaarticle Fief.

[edit]Notes

  1. ^ a b Abels, Richard. "Feudalism". United States Naval Academy.
  2. ^ Cantor (1993), pp. 198-199.
  3. ^ a b Cantor (1993), p. 200.
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