What are formalities?
Formalities concern the rules and procedures that must be followed for a disposition to be effective.
Concerns the manner in which intention is declared
- has intention been declared in writing, orally etc.
What factors need to be considered to determine what formalities are required for a disposition?
- The manner in which the property is disposed (e.g. what did they intend to do, give a gift, create a trust etc) and
- The type of property being disposed of? (Land. Personalty etc)
- Inter vivos or testamentary?
Where are the statutory formalities for testamentary dispositions outlined?
Section 9 the wills act 1837
Where are the statutory formalities for inter vivos trusts over land identified?
A. 53(1)(b) Law of property act 1925
Where are the statutory formalities for inter vivos trusts over personalty identified?
Paul v Constance
Where are the statutory formalities for inter vivos trusts over outright gifts?
Re Cole
Where are the statutory formalities for inter vivos dispositions of equitable interests?
S.53(1)(c) Law of property act 1925
What are the formalities for outright gifts?
No statutory formalities! A clear intention is required. This applies to all property, including land!
This is the same as trusts over personalty
What are the formalities for trusts over personalty?
No statutory formalities! A clear intention is required (that A clearly intends to fragment their title and place obligations on the trustee)
Simple oral declaration can be sufficient.
This is the same as outright gifts
What are the formalities for Trusts over Land?
Declaration must be evidenced by some writing and signed
What are the formalities for disposing of an equitable interest?
Disposition must be in writing and signed (by the trustee or his agent).
What happens when the formalities for land/s.53(1)(b) are not complied with?
The trusts is valid, but unenforceable (not void or invalid) - Gardener v Rowe
What happens when you fail to comply with the formalities for s.53(1)(c) (equitable interest dispositions)
Failure to comply with s.53(1)(c) will make the disposition invalid
