The available remedies include an order to pay money, as damages, and they include other remedies stemming either from legal origins or equity origins, as the circumstances of the case may require.
The English Courts clearly identified the basis of the equitable doctrine of constructive trust in securing a pre-existing beneficial right to property .
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However the House of Lords rejected this approach as encroaching on property rights, but did allow for a trust to be created if substantial contributions were submitted to the matrimonial home, e.
The Remedial Constructive Trust is a variation that is in operation in the USA and Canada and used as a remedy to injustices, it is a much more flexible approach and designed to ensure that the lack in the common and statutory legal structures do not result with injustice, i.
Court of Appeal Judges, headed by Lord Denning, in the late 60s and 70s recognized that there was problem in respect to the changing face of the family home, i.
The trial judge found that Mr. Since then, the development of the case law has been unclear, and appears to vary strongly from judge to judge. The survivor will be precluded from making a subsequent will to deal with that property or to dispose of the property in a manner inconsistent with the trusts imposed.
The aim of both instruments is to enforce an informal promise between the legal landowner and the claimant.
The deceased intended that the plaintiff would be the beneficiary of the policy. It has been developed to include cases where there has been no benefit or loss but because of the lack of good conscience the remedial nature of equity and justice demands the imposition of a trust.
Essentially, a property right is a legal power or bundle of rights permissibly exercised over a thing or land . The result is the same. Entitlement to the remedy is an issue for the substantive law, but the trust itself is created by order of the court, not by the acts of the parties, or even by the obligation to make restitution.
Montreal Trust declined to bring an application to resolve the conflicting claims of the University and the individual defendants and, as a result, the University commenced an action seeking a declaration that the defendant executor, Montreal Trust, holds all of the assets of the estate of Michael Daniel Sanderson as constructive trustee for the sole benefit of the University.
A constructive trust may be imposed on the survivor of the parties or on his or her personal representative if it can be shown that there was an agreement between the parties not to revoke their wills, and to dispose of their property in a particular way if the survivor has subsequently broken the agreement and made another will.
Moreover, a constructive trust need not be evidenced in writing . The problem of bankruptcy demonstrates, therefore, that Australian courts may have drastically extended the notion of unconscionability to defeat unsecured creditors.
On the application of Montreal Trust, which was granted administration of the estate, letters probate were issued on 6 February in relation Remedial constructive trusts essay the Will. In equity, however, a much broader range of remedies are available to protect a plaintiff from the unconscientious exercise of rights in rem .
As a result, the English Courts adopt a more straitened approach than the High Court of Australia in impressing legal title to land with a constructive trust. It has been developed to include cases where there has been no benefit or loss but because of the lack of good conscience the remedial nature of equity and justice demands the imposition of a trust.
There are still problems today that equity is still trying to deal with, such as unmarried couples and same-sex couples and as Sir Scott Medforth states: Indeed for the student of equity, there can be no true dichotomy between the two notions.
Upsetting the ordinary legal separation between rights in rem and in personam, therefore, the theoretical fuzziness or indistinction underlying the remedial constructive trust may have serious practical consequences .
From this case Canada has created a body of case law approving the trust, even though the House of Lords rejected this approach. Hence, imposition of the remedial constructive trust is beset by a vicious circle between rights in rem-in personam and law and equity.
Although constructive trusts require a trustee and a cestui que trust, Australian courts hold that a remedial constructive trust need not necessarily attach to any clearly identifiable pre-existing right in rem or existing trust property .
Under English law there is a limited amount of circumstances that the court will do this and they are known as Institutional Constructive Trusts.Title: “The remedial constructive trust has taken root in the United States and Canada: it is unlikely to do so in England” Millett LJ in Restitution and Constructive Trusts LQR p Explain the differences between remedial and institutional constructive trusts and the advantages and disadvantages of each approach.
Why In re Omegas Group Was Right: An Essay on the Legal Status of Equitable Rights Emily Sherwin Cornell Law School, [email protected] of equitable title and a failure to appreciate the remedial nature of constructive trusts.
10 If, as the Restatement (Third). The Law In Relation To Constructive Trusts Law Equity Essay. Introduction "English law provides no clear and all embracing definition of a constructive trust.
A remedial constructive trust, on the other hand, is usually described as a judicial discretionary remedy, which may have retrospective effect”. In other words, the courts have the ability to both affirm the pre-existence of constructive trusts and to impose constructive trusts as.
In Part II, the paper raises the doctrine of the constructive trust, comparing the ‘old style’ common intention constructive trust with the ‘new style’ remedial constructive trust.
The paper refracts the unruly basis of the remedial constructive trust through contradictory authority in England and Australia . an essay i submitted on the australian 'remedial' constructive trust INTRODUCTION The remedial ‘new style’ constructive trust has developed into a potent remedy, protecting beneficial interests in property against both the legal owner and subsequent third-parties .Download