This thesis examines the law relating to informal promises concerning the disposition of property on death. These promises are referred to as testamentary promises. Part I examines the social background to testamentary promises, the safeguards provided by the law of wills and the problems associated with informal testamentary promises. It is concluded that the law should respond to the social problems created by unfulfilled testamentary promises, but that this response must be tempered by a recognition of the dangers involved in enforcing informal promises outside the law of wills and by the need to avoid injustice to other claimants against the deceased's estate. Part II evaluates four different approaches to disputes involving testamentary promises. These are: enforcing testamentary promises through the law of contract; satisfying the equity arising under the doctrine of proprietary estoppel; reversing unjust enrichment through the law of unjust enrichment and exercising a statutory discretion under a statutory regime such as the New Zealand testamentary promises legislation. In each case the legal principles are identified and the impact of the remedies on the distribution of the deceased's estate is explained. It is concluded that there are a number of difficulties inherent in each of these four approaches, which makes their application unsatisfactory.Part III suggests and explains a new approach to testamentary promises, which would resolve the difficulties in the current law. It contains a draft Inheritance (Testamentary Promises) Act, the enactment of which would introduce discretionary statutory remedies where testamentary promises have been made and where the claimant has provided work or services for the deceased. It specifies factors which the court would have to consider in exercising its discretion and states where the claim would rank in relation to other claims on the deceased's estate.

This thesis re-examines the law of secret trusts and the doctrinal justification for enforcing a legatee's promise to a testator to apply his inheritance for the benefit of a third party nominated by the testator. It critically appraises, in terms of both case law and theory, the justifications presented by the fraud and dehors the will theories. Commencing with a review of the law on past and present testamentary formalities, it presents evidence that the modem dehors the will theory is a throwback to early misunderstanding about the relationship of informal testamentary trusts to wills. The testamentary nature of secret trusts is confirmed by an examination of probate case law defining a will and an analysis of the functions of the Wills Act formalities excludes the notion of an implied statutory exception for secret trusts. A review of precatory secret trust case law indicates how the law has developed based on a conventional assumption as to the nature of testators' secret instructions. The thesis also re-considers limits to the fraud-based constructive trust jurisdiction assumed to have endured the demise of the special probate courts. The thesis offers a new approach for English law based on accommodating the legatee's moral duty within a contingent restitutionary principle of personal fraud.

The main aim of this research is to determine the fiduciary status of constructive trustees; that is, whether and in what circumstances a trustee of a constructive trust is a fiduciary. This is an issue that has received some cursory attention, but about which there has been little analysis. It is important to tackle this apparent lacuna for two primary reasons. Firstly, because although it has not been an area that has caused much concern to date, there may arise in the future an issue that requires a specific answer to this question. For example, where a common intention constructive trust arises in the context of co-habitation, the question may arise of whether the constructive trustee of the couple's property is subject to the fiduciary duty of loyalty and thus must account to the beneficiary for any profits received from the property. Research should be proactive as well as re-active, and although this issue does not seem to have arisen in the past that does not mean that it will not arise in the future. While it might be argued that we can answer this question already, the current writing on the fiduciary status of constructive trustees is inconsistent and would seem to provide conflicting answers to the above question. This leads to the second, and more urgent, reason for tackling this issue. The current lack of understanding of this issue highlights a more basic lack of understanding in respect of fundamental aspects of trusts law. Our misconceptions about the fiduciary status of constructive trustees arise from both a lack of understanding about the nature and creation of fiduciary obligations and relationships, and a misunderstanding about the consequences of the imposition of constructive trusts and the nature of constructive trusteeship. This research seeks to address these issues.

This study employs the entire body of surviving wills for Stratford-upon-Avon, 1537-1649, alongside other documentary evidence including ecclesiastical court depositions, local Court of Record proceedings, and minutes and accounts of the town's Corporation, in order to examine aspects of everyday life in this early modern town. In particular, it uses the wills as a lens through which to examine the 'culture of will-making', kinship, affect, and women's legal status and economic opportunities in Stratford. The focus on the town's women provides important additional knowledge which contributes to the growing scholarship on the experiences of non-elite women in England at this time, while its innovative use of the database Nvivo to classify the bequests and naming patterns found in the wills allows for greater nuance in our understanding of how early modern people may have thought and felt about their friends, family, and possessions. Methodologically, the thesis argues for a holistic treatment of the wills, and demonstrates their utility and complexity as a source, while its findings challenge some commonly-held assumptions about the nature of kinship and about the financial dealings and legal opportunities enjoyed by middling sort women in early modern England.

The rule in Re Hastings-Bass is an equitable control on the exercise of powers by trustees. It has developed without satisfactory explanation of its doctrinal basis, resulting in uncertainty as to its scope and application. In Pitt v Holt [2011] EWCA Civ 197 the Court of Appeal began to remedy these defects by deciding that the rule is founded on a trustee’s duty properly to consider the exercise of a power. This thesis argues, first, that Pitt is right to understand the Re Hastings-Bass rule as premised on the duties of trustees, and not on the exercise of a power producing an unintended result. This accords with the reasoning of earlier cases on the rule, and is also consistent with House of Lords authority on fiduciary powers and judicial non-interference in trustees’ decision-making. This duty is not a ‘fiduciary’ duty, or an aspect of the trustee’s duty of care, but is an independent incident of the office of trustee. Secondly, this analysis of the Re Hastings-Bass rule facilitates exposition of its important features: the concept of ‘relevant consideration’ must be carefully circumscribed; the purported exercise of a power in breach of the rule is voidable, not void; the rule does not apply to purely personal powers, or to administrative powers; there are no special rules for pension trusts or the use of the rule to mitigate liability to taxation; trustees can usually avoid a breach of duty by taking professional advice; and in some circumstances, those professional advisers can incur liability to the trust beneficiaries. Finally, the relationship between the Re Hastings-Bass rule and fraud on a power is examined. It is argued that the analogy between the two doctrines is not sound, and that there is reason to doubt aspects of the orthodox account of fraud on a power.

No description available.

The central tenet of tracing theory is that in certain circumstances it is possible to show that one asset stands in the place of another, such that any claims in relation to the original asset can be transmitted to its substitute. Since at least 2001 academic and judicial orthodoxy has been that this is done by following the path of value from one asset to the other, and can be aided in more complex cases by the application of evidential rules or presumptions. These ideas are at the heart of existing accounts of proprietary claims against trustees who deal with trust assets without authority, and personal and proprietary claims against strangers to the trust. They are also at the heart of calls to 'unify' the rules of tracing at law and in equity, removing existing distinctions drawn between claimants who are owed fiduciary duties and those who are not. In this thesis it is argued that there are no independent processes of following and identifying value, and that the language of 'tracing value' has lent the appearance of neutrality and conceptual unity to disparate heads of fiduciary and non-fiduciary liability. Most importantly, it has led to the assumption that in any case in which a claimant can demonstrate that a series of transactions links some right in the defendant’s hands with a right previously held by or for the claimant, the claimant can claim that right. In this thesis it is argued that far from creating an arbitrary practical obstacle for claimants seeking to trace and locate value, the fiduciary relationship is at the heart of the justification for any claim that exists to a new right in the hands of someone else.

La joyeuse confusion qui règne en matière de libéralités s'explique par l'inadaptation des règles du régime juridique, élaboré en 1804 dans un esprit de défiance. Les libéralités ne pouvaient être que suspectes dans un système reposant sur l'échange intéressé. Progressivement, l'on a admis que ces actes à titre gratuit pouvaient être intéressés et l'on a même reconnu que la transmission anticipée du patrimoine était nécessaire en raison de l'allongement de la durée de vie, de sorte que ceux-ci ne sont, non seulement, plus suspects, mais encouragés. Le décalage existant alors entre la rigueur du régime juridique et la faveur pour les libéralités conduit le législateur et la jurisprudence à recourir à de nombreuses fictions juridiques. Celles-ci leur permettent tantôt d'exclure l'application du régime, tantôt de l'appliquer pour parvenir aux solutions qui leur semblent les plus équitables. Si le procédé est évidemment louable, il engendre une décadence de la notion de libéralité et ne permet plus de la définir, sauf à répondre qu'elle dépend de la règle appliquer. Un tel dépérissement des certitudes est dangereux, tant la qualification de libéralité engendre encore des conséquences civiles et fiscales redoutables. Il conduit à repenser la notion de libéralité. Dans un contexte de libéralisation du droit des libéralités, il y a donc lieu d'adopter une notion unitaire et conceptuelle de libéralité, composée de deux éléments matériel et intentionnel cumulatifs. / The joyful confusion that reigns in terms of liberalities is explained by the inadequacy of the rules of the legal regime, developed in 1804 in a spirit of mistrust. Liberalities were necessarily suspicious in a system derived from self-­interested exchange. Gradually, it was recognized that these gratuitous acts could be interested and it was even recognized that the early transmission of assets was necessary because of the longer life span, so that they were no longer suspect but encouraged. The gap then existing between the rigour of the legal regime and the favour for liberalities led the legislator and the case law to resort to numerous legal fictions. These fictions allowed judges to sometimes apply the legal regime for liberalities and other times, exclude it, only to reach solutions that seem most equitable to them. If the process is obviously commendable, it begets decline of the notion of liberality. There is no longer a clear definition of what a liberality is, if not by saying that it depends on the rule. The characterization of liberality still has formidable civil and fiscal consequences. So, the notion of liberality needs to be redesigned. ln a context of liberalization of the law of liberalities, it is therefore necessary to adopt a unitary and conceptual notion of liberality, made of two cumulative elements : material and intentional.

La France est un pays laïc. Son système successoral aussi est d'identité laïque. La loi successorale s'applique à tous les français sans distinction de sexe et de religion. En revanche, le Liban est un pays multiconfessionnel. En matière des statuts personnels dont la succession fait partie, il est soumis aux règles religieuses et civiles. Pour les musulmans libanais, ces règles sont issues du Coran. En revanche, les chrétiens et les juifs libanais appliquent une loi laïque inspirée de l'ancien Code civil français. Face à cette situation, le principe de l'égalité de tous devant la loi- garantie par la constitution libanaise- est loin d'être respecté. Depuis longtemps, le droit français est une source d'inspiration du droit libanais. Tel est le cas du Code des contrats et des obligations libanais qui fut le fruit du travail du doyen JOSSERAND, ce Code étant toujours en vigueur au Liban. Dès lors, comment le législateur libanais peut-il moderniser et réformer les lois religieuses pour qu'elles soient en harmonie avec les autres lois du pays ? L'élaboration d'une loi successorale unique à la lumière du droit français serait-elle possible et souhaitable? / France is a lay country. Thus its laws governing system of estates upon death are ruled by the principle of identity. Such laws apply to all French nationals irrespective of sex and religion. On the contrary, Lebanon is a multi-religious country. As regards matters relating to transmission of property upon death, the lebanese are governed by their religious and civil laws. For a Lebanese Moslem such rules are comprised in the Koran. Christian and Jewish Lebanese are subject to a lay legal system which sprang from French civil code. As a result, the principle of equality- of all before the law- warranted by the Lebanese constitution-is far from respected. For a long while now, French law has been a source of inspiration for Lebanese law. For exemple, the Lebanese contracts and debts code which resulted from the work of Dean JOSSERAND, the said code being still law in Lebanon. This being so, how can the Lebanese law maker modernise and reform the religious laws to bring them in line with the other laws of the country ? Would the elaboration of a unified Lebanese law of transmission of property upon death in the light of French law be feasible ?