Equity and Trusts

This Court should not follow the Panel’s suggestion that Petersons’ challenge to personal jurisdiction be waived because no party made this argument to either this Court or the Court of Appeals. Under our system of government, the role of courts is not to advance arguments in
support of any of the adverse parties. United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020)(“In our adversarial system of adjudication, . . . in both civil and criminal cases, in the first instance and on appeal . . ., we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id. at 140 S. Ct at 1579 (quotation marks omitted).) Cf. English v. Buss, supra., at **11-14 (unpublished) (Held one judge could review the order of another judge where lack of procedural due process was apparent.) See also RAP 2.5.
Had Division One panel’s waiver argument been made by the opposing party and its counsel the Petersons, through their counsel, would have been able to demonstrate this position should be rejected because the record reflects the Petersons never agreed to waive their right to adequate, non-fraudulent service of process, which includes being “duly cited to appear.” As to this right, see e.g., Hovey v. Elliott, 167 U.S. 409, 418 (1897); Garrison v. Cheeney, 1 Wash. Terr, 489, 503 (1875); Galpin v. Page, 85 U.S. (18 Wall.) 350, 368-69 (1873) (“It is a rule, old as the law, . . . , that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard.”)

As to the law that waiver of constitutional rights must be knowing, intelligent, and voluntary, see State v. Herron, 183 Wn.2d 737, 743-45, 356 P.3d 709, 712-13 (2015). In fact, a court must “indulge every reasonable presumption against waiver of fundamental rights.” State v. Frawley, 181 Wn.2d 452, 461, 334 P.3d 1022 (2014). Under these constitutional principles there was no waiver of the Petersons’ right, asserted in their answer and other pleadings, not to be hailed into
a court that had no personal jurisdiction over them.

Another reason that failure to file a specific motion to dismiss for a lack of personal jurisdiction pursuant to KCLR 7(b)(5) was not required is because CR 12(h)(1) specifically provides “A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived . . . (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by rule 15(a) to be made as a matter of course.” Here, these personal jurisdiction defenses were clearly asserted in the Petersons’ Answer, Affirmative Defenses, and Response to the Bank’s motion for summary judgment. And even if it was the intent of this superior court to require persons to file motions to dismiss under these circumstances, a superior court does not have the authority to
compel this result as local rules cannot alter the Washington Rules of Civil Procedure. See Parry v. Windermere Real Estate/East, 102 Wn. App. 920, 928-29 (2000)(Local Rule cannot waive right under CR 12(h) to assert personal jurisdiction defenses in answer); See also Harbor Enters. v. Gudjonsson, 116 Wn.2d 283, 293 (1991); State v. Chavez, 111 Wn.2d 548, 554 (1988)(Local court rules are subordinate to state rules of civil procedure).

In summary, and with such respect as is due the Panel’s suggestion that the Bank’s motion to amend should be granted, it is Petersons’ contention that judges must respect citizens constitutional rights and not waive them without a factual basis for doing so. Similarly, with
respect, the Panel had no constitutional authority—and violated the Petersons’ right to due process of law—when it invented an argument to help the Bank, which was inconsistent with the Civil Rues and cases interpreting them. Thus, this Court should also not waive the Petersons’ right to adequate service of process before granting a motion to amend because such a result would be futile under existing law, notwithstanding anything the Court of Appeals panel has said. Colvin v. Inslee, 195 Wn.2d 879, 899-901 (2020)
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Not since the United States Supreme Court’s constitutionally and morally bankrupt decision in Sanford v. Scott, 60 U.S. 393 (1857)2 has the integrity of America’s judicial system been more in doubt than it is now. See e.g., The Wall Street Journal, “131 Federal Judges Broke the Law
by Hearing Cases Where They Had a Financial Interest” (September 28, 2021); House Judiciary Committee, Nadler & Johnson Statement on Reports Federal Judges Broke the Law by Hearing Cases
Where They Had a Financial Interest (September 29, 2021)4. The problem an economically biased judiciary poses for our democratic republic is that it undercuts the basic premises upon which this
nation was founded, i.e., separation of powers, checks and balances, federalism, and due process of law. Unfortunately, for us, the People, these constitutional structures are not self enforcing, but must be enforced by those who have been economically incentivized to promote the interests of government workers—and their creditor allies—against this nation’s citizens.

This dissertation hopes to explore the authorities with regards to the law on Charities, with particular reference to trusts for the advancement of education. The author wishes to concentrate solely on educational Charities as in the aftermath of the decision in the Independent School Case,  the Charity Commission was forced into amending its guidance as to the notion of what is meant by public benefit.  Therefore, this dissertation aims to critically evaluate the law underpinning trusts for the advancement of education, so as to determine whether or not there is a need for a statutory definition of public benefit.

This dissertation is a study of unincorporated associations in relation to the beneficiary principle. The question the dissertation seeks to ask is “why are gifts to unincorporated associations problematic?” It will be seen in this dissertation that the reason why transferring gifts to unincorporated association is problematic is because unincorporated associations have no legal personality and transferring gifts to them for their purposes will be void because it is goes against the beneficiary principle. It identified various ways of construing transfer of gifts to unincorporated associations by the courts and concluded that the construing a gift to members of unincorporated association subject to their contractual rights in accordance with the rules of the association (also known as the contract-holding theory) has overcome the problems faced by unincorporated associations when transferring gifts to them. It also gave suggested reforms giving unincorporated associations legal personality.

Paper submitted as part of the Property Law II (Trusts & Equitable Remedies) module at UCL.

Full paper title (with credit to UCL):

"‘[The] principle which animates the answer to the question whether an apparently incomplete gift is to be treated as completely constituted is that a donor will not be permitted to change his or her mind if it would be unconscionable, in the eyes of equity, vis-à-vis the donee to do so.’ (Arden LJ in Pennington v Waine). Discuss"

Bill died recently. According to his will, the residue of his entire estate is to be held in trust as follows: (a) to provide training for soldiers; (b) to provide uniforms for soldiers serving in Bill’s old regiment; (c) to encourage the government to increase military spending. Fred and Simon were appointed as the executors of Bill’s estate and the trustees of his will trusts. They seek your advice concerning the validity of those trusts. Bill’s old regiment was disbanded last year. Advise Fred and Simon

The argument in this chapter is that, even if many do not like the implications of the decision, it is difficult to argue that Burns v Burns - which concerned a claim by a cohabitant to share in the beneficial interest of a family home based on work in the home - was wrongly decided on its own terms (although the Court of Appeal did present a rather limited version of the common intention constructive trust analysis in respects unrelated to the actual facts of the case). Unlike the position following Gissing v Gissing in respect of married couples, no legislative reform in respect of cohabitants has followed in the wake of Burns v Burns. It is arguable that Waller LJ was correct to suggest that the problem in cases such as Burns is not ‘one which could readily be dealt with by legislation’.The Law Commission’s proposed legislative model seems very complex and, though perhaps not for this reason, may not be enacted in the near future. This chapter doubts the legitimacy, in democratic terms, of radical judicial reform in this area and has also suggested that the current common intention trust analysis is not a promising avenue for future development on an incremental basis. This may seem a pessimistic outlook, but where is it decreed that every type of dispute that can arise in society can easily be dealt with by legal means? It may be, however, that something will eventually give – if legislative reform does not occur, then some creative or accidental misreading of existing equitable doctrine may supply the opportunity for the courts to widen the circumstances in which they give a remedy in disputes in the cohabitation (or the wider family) context. Stack v Dowden does not represent this sort of turning point, though perhaps the hyperbole surrounding the case may create a suitable climate for a more radical new departure. Such a departure would probably not be defensible in democratic terms – especially if it occurs against the background of a conscious decision by the legislature not to implement legislative reform – but, if the courts were to choose to ignore this obstacle, it is difficult to see who could effectively call them to account. Nonetheless, the clear insistence by Fox and May LJJ that this kind of reform is more appropriately a matter for Parliament establishes Burns v Burns as a landmark to guide future judges, if they are willing to heed it.

I have been researching equity jurisprudence for several years now in order to prove my hypothesis that people were better served by governments in the middle ages than they are now -- at least with respect to access to justice and equity. Yesterday, I came across Volume I of Justice Story's well-known Commentaries of Equity Jurisprudence on the internet.

I considered this digital book to be a great find and set about studying it. Before I barely got started I was startled to observd the book had dedicated to an ancestor of mine on my mother's side - William Henry Prescott, who apparently was also a lawyer, i.e. LL. D..

When I was born my Mom and Dad argued over my name. Mom wanted to name me Prescott. But Dad argued everybody would call me "piss pot Prescott"

So Mom caved and I became Scott.

This article explores four pressing analytical challenges in fiduciary law. The problems are exposed by seeking answers to the pointed “who, what, and so what?” questions on fiduciaries. In short, “Who is a fiduciary?” and just how far does this protective jurisdiction stretch. Secondly, “What distinctive obligations rest on a fiduciary’s shoulders?” — what is it that defines and sets apart the fiduciary regime, providing it with mechanisms which differ from the routine restrictions applying to anyone who acts for others? And, finally, “What particular and distinguishing consequences follow upon a breach of these special restrictions?” This last question breaks down into two familiar but seemingly intractable parts: when and how do profits need to be disgorged; and when and how do losses need to be compensated? The answers to these four questions have never proved easy, yet these are the questions we must answer. Here it is suggested that a tightly rationalised (and, as it turns out, rather narrow) answer to the first question leads inescapably to more readily defensible answers to the three questions which follow it.

Pitt v Holt reformulates the 'rule in Re Hastings-Bass' in a novel way, seeking to bring it into line with general principles of English trust law. This note considers the consequences of the re-orientation of the 'rule' around the concepts of duty of care and breach of trust, with particular reference to administrative powers and the personal liability of trustees.

The Bergerons assert based on the foregoing that Washington’s Registration of Land Titles Act was created in order to provide all Washingtonians, including those who are not wealthy, a forum in which to protect title to their land outside of Washington’s fundamentally unfair litigation process. See e.g. Washington State Supreme Court, The Washington State: Civil Legal Needs Study (September 2003); Washington State Supreme Court, 2015 Washington State: Civil Legal
Needs Update Study (October 2015). (“Justice is absent for low-income
Washingtonians who frequently experience serious civil legal problems” Id., p. 3).

Because the Torrens Act has withstood numerous recent attempts to repeal it, all of which failed, the Bergerons assert this Court should apply this statute as the law of Washington, no matter whether judges like the statute because it serves an important purpose during these factious times, where it appears Washington’s judges have aligned themselves with creditors against debtors, who must borrow money to finance homes. See James Madison, Federalist Paper No. 10 (1787).

San Marino trust law is embedded in a consolidated civil law tradition stretching back to the ius commune system of fiduciary instruments, thereby making it possible to trace, to a large extent, an itinerary related to common law trusts, and to challenge unwarranted allegations (now, fortunately, fading away) that trusts cannot be transplanted into civil law countries. San Marino has not confined itself to imitating other offshore legislation, but has drawn up a unique trust system reconciling the typical features of international models - thus embarking on the race to attract the trust business within its borders - with the peculiarities of its own system of sources. Hovering between the principles of confidence and patrimonial separation, the international models and ius commune, San Marino trust law proves to be the perfect combination of innovation and tradition, and longs to become a benchmark for the regulation of trusts established in civil law jurisdictions.

L’opera, dopo aver passato in rassegna le principali caratteristiche del trust, dell’atto di destinazione e del negozio di affidamento fiduciario nonché le più rilevanti questioni problematiche ad essi relative (capitolo 1), esamina in modo assai approfondito (attentamente vagliando le posizioni in merito tanto della dottrina quanto della giurisprudenza, anche inedita) le implicazioni dell’utilizzo di tali negozi in ambito familiare: all’attenzione del lettore vengono così poste (con una costante attenzione all’esigenza – sovente trascurata dalla prassi – del rispetto delle norme imperative del nostro ordinamento) le relazioni fra di essi e la disciplina in tema di regime patrimoniale della famiglia (capitolo 2), di crisi del matrimonio o dell’unione civile (capitolo 3), di accordi fra conviventi (capitolo 4), di incapacità totale o parziale di agire (capitolo 5) e di tutela dei diritti successori dei legittimari (capitolo 6). Il lavoro tiene conto anche dei più recenti provvedimenti legislativi che sono intervenuti nella materia in esame: trattasi  della legge del 20.5.2016, n. 76 (recante “Regolamentazione delle unioni civili tra persone dello stesso sesso e disciplina delle convivenze”) e della c.d. “legge sul dopo di noi” del 22.6.2016, n. 112 (recante “Disposizioni in materia di assistenza in favore delle persone con disabilita' grave prive del sostegno familiare”).

Information overload is a new challenge in e-commerce sites. The problem refers to the fast growing of information that lead following the information flow in real world be impossible. Recommender systems, as the most successful application of information filtering, help users to find items of their interest from huge datasets. Collaborative filtering, as the most successful technique for recommendation, utilises social behaviours of users to detect their interests. Traditional challenges of Collaborative filtering, such as cold start, sparcity problem, accuracy and malicious attacks, derived researchers to use new metadata to improve accuracy of recommenders and solve the traditional problems. Trust based recommender systems focus on trustworthy value on relation among users to make more reliable and accurate recommends. In this paper our focus is on trust based approach and discuss about the process of making recommendation in these method. Furthermore, we review different proposed trust metrics, as the most important step in this process.

El fundamento y fin del servicio público es lograr la equidad y solidaridad.
Existen, sin embargo, retos y desafíos que deben ser contenidos a fin de conservar esos dos pilares inalterados. La liberalización de servicios públicos, las amenazas a la independencia de los reguladores y las tecnologías disruptivas son algunos

Although the property rights of spouses in Ireland continue to be held on the basis of title and are not automatically modified by marriage, some modifications to the separate property regime have been made. This paper focuses, in particular, on the protection afforded to non-owning spouses against the unilateral disposition of the family home pursuant to the Family Home Protection Act 1976. Ireland is unusual in the common law world as the 1976 Act automatically confers non-owning spouses with a right to veto the conveyance of any interest in the family home. This paper questions whether the 1976 Act has faded into irrelevance in the Ireland of 2013. Concluding that the legislation continues to play a vital role in the protection of spouses in Ireland, the article argues similar legislation ought to be considered in other common law countries where the unilateral disposition of the family home is not subject to comprehensive legislative restrictions. In particular, the article focuses on the weaknesses in the protection afforded to non-owning spouses in the family home inter vivos in England and Wales and British Columbia, Canada. Arguing that legislative reform would considerably bolster the position of vulnerable, non-owning, spouses in both jurisdictions, the article concludes with a discussion of the key lessons to be learned from the Irish approach.

'Protection against the Unilateral Disposition of the Family Home: An Irish perspective’ (2013) International Journal of Law, Policy & the Family 27(3), 399-428

The Italian case-law on sham trust is growing up every day.
Some scholars argued that civil law jurisdictions should not relate on the common law concept of sham, but they should refer to the civil law one of “simulation”. A close look to the most recent case law on sham trust, united to an analysis of mixed and civil law jurisdictions’ trust laws on the subject, lead to uphold this theory.
Italy however does not have its own trust law, but Italian trusts exist thanks to the Hague convention. According to the author, even in Italian law the civil law concept of simulation is still the preferable one, but the choice between sham and simulation depends very much on the meaning of sham you decide to pick.

In this paper, the author traces the now-commonplace protector mechanism back to its offshore roots. By focusing explicitly on private, express offshore trusts, the present writer asks, first, what motivated the trust parties to include this entirely optional office in their dealings and, second, whether their reasons for inclusion could not have been more effectively achieved without a protector. This will include an exploration of those common powers conferred to the office, and a particular focus on the 'agency costs' theory of trusts, which emerged during the 1990s and offers a normative lens through which the value of the protector can be analysed.

Trust drafting is full of traps for the unwary. Most are well known, but two recent cases have given rise to some novel points of interest and importance. These are Rawstron v Freud [2014] EWHC 2577 (Ch) on secret trusts, and Crociani v Crociani [2014] UKPC 40 on choice of law and jurisdiction in trusts with a foreign element.

This article will explore potential impacts to the practices and principles of trusts law as a consequence of rapidly evolving blockchain technology and other technologies associated with it, namely “smart property” and the “internet of things”.  The relevance of the blockchain to trusts law that this article with argue for, is based on widely-held yet generic characterizations of the technology that can be summarized in the following way: the blockchain is a decentralized and disintermediated system based on cryptographic proof instead of trust; a “peer-to-peer network using proof-of-work to record a public history of transactions”  that creates a post-trust paradigm in which there is no need “for participants to be trusted”, and which provides “no centralized, single point of failure” . 

There is already good cause to believe that blockchain architecture can be mapped onto trusts, or vice versa.  Evidence of this comes from an existing, if still somewhat immature, post-trust paradigm facilitated by the blockchain in the growing legal domain of smart contracts.  Comparable with smart contracts, “smart trusts” would, for example, involve trusteeship (in terms of duties and obligations etc.), being distributed across a public computer network involving varying numbers of anonymous nodes all working to securely facilitate and verify property transactions.  A distributed “trustee” architecture could, in theory, remove the need for continuous human intervention in and monitoring of, for example, trust fund investments by a single trustee, group or board of trustees, and thus remove key issues relating to accountability and, more importantly, the potential for any breach of trust .  Moreover, the potential for increased security and efficiency of smart trusts and distributed trusteeship would arguably improve the overall investment strategy of the trust, thereby creating better returns for beneficiaries.  As a tentative early exploration into the compatibility of blockchain architecture and trusts, this article will explore these ideas in relation to basic principles of express trusts and trusteeship.

This chapter is concerned with the availability of injunctions in nuisance cases following Coventry v Lawrence. In that case, the Supreme Court introduced a more flexible approach to the exercise of the discretion to refuse an injunction and significantly degraded the authority of the Court of Appeal decision in Shelfer v City of London Electric Lighting Co. I consider the previous case law and academic writing on the topic, as well as arguments for and against a radical reappraisal of the role of the injunction remedy. I also consider whether the more general shift away from the Shelfer criteria towards a broader discretion is to be welcomed, and which factors should be taken into account when that discretion is exercised. I conclude that while there are good reasons why injunctions should continue to be the default remedy in cases of continuing wrongs, the remedial flexibility signaled in Coventry is to be welcomed. I also argue that, in determining whether to issue an injunction, the courts should take into account at least three factors in addition to more wellestablished considerations: (1) the possibility that injunctive relief will incentivise the defendant to seek out alternative beneficial ameliorative measures; (2) whether the claimant's motivation in litigating is primarily financial; and (3) the ease of assessing damages in lieu of an injunction on the facts.

Keywords: tort law; private nuisance; injunctions; damages in lieu of an injunction; Coventry v Lawrence