| CODE | CVL4027 | ||||||||
| TITLE | Introduction to the Law of Trusts, Foundations and Fiduciary Obligations | ||||||||
| UM LEVEL | 04 - Years 4, 5 in Modular UG or PG Cert Course | ||||||||
| MQF LEVEL | 6 | ||||||||
| ECTS CREDITS | 4 | ||||||||
| DEPARTMENT | Civil Law | ||||||||
| DESCRIPTION | Learning Outcomes: By the end of this study-unit students will have: • Understood the historical development of the trust institute and the contribution of equity to such development; • Examined this against the development of the trust institute in Malta; • Appreciated the trust institute as a species of fiduciary obligation; • Examined the trust, foundations and fiduciary obligations and the relative principles and operation within legal systems; • Examined and understood the various ‘players’ involved in a trust and a foundation; • Learnt how to critically analyse local and foreign court judgments in this field and apply them to the Maltese legal environment; • Considered the place and role of the trusts, foundations and fiduciary obligations within the laws of Malta; • Considered those equitable principles connected with the trust instrument; • Developed an awareness of the social and economic context of trusts and foundations and an ability, both individually and when working with others, to identify accurately issues involving principles of trust and foundations law and to apply these to the solution of problem situations and real-life cases. Synopsis of contents: The study-unit will examine the following areas: I. Introduction to the Law of Trusts, Foundations and Fiduciary Obligations - Defining a Trust, a foundation and a fiduciary obligation - The Component Parts of a Trust – the Concept of a Separate Patrimony - The Hague Convention on Trusts - Relevant Maltese Legislation - The Widespread Use of the Trust and Foundations Today II. The Development of Equity and The Law of Trusts, Foundations and Fiduciary Obligations - Why Equity Developed - Contrasting Legal and Equitable Rights - The Growth of the Trust - Why Civil and Common Law Jurisdictions Took Different Paths - The History of Foundations and the various types of foundations - The Trustee and the Beneficiary- A Fiduciary Relationship III. Trust-Like Devices; Comparisons and Contrasts - Common Law: Bailment, Agency, Mortgage, Executorship - Civil Law: Tutorship, Curatorship, Usufruct and Bare Ownership, Fideicommissa, Foundations IV. The Requirements for a Valid Trust and a Valid Foundation - Capacity- Who Can Create a Trust? - Formality- How must it be Created? - The Three Certainties - intention, subject matter, objects - Formal and substantive requirements of a Foundation - Registration of a Foundation V. The Rule Against Perpetuities VI. The Various Types of Trust – One - The Express Trust and Its Differing Forms: fixed, discretionary, protective, life and contingent interests - Purpose Trusts and Purpose Foundations - Letters of Wishes VII. The Various Types of Trust – Two - Implied or Resulting Trusts - Constructive Trusts and Tracing - Charitable Trusts VIII. Powers of Appointment IX. Conflict Issues - The Proper Law - The Relationship between Trusts and Legitim X. Trustees/administrators and the Administration of the Trust and Foundation - Due diligence and the Duty of Care - Record Keeping and the Beneficiaries’ Right to Information - Shams and Pretences - How trustees take Decisions XI. The Trust Instrument Itself - The Formal Parts - Typical Standard Provisions - Indemnity, revocability and Remuneration XII. Protectors- Their Role and Status - Choosing the Protector - Powers, Rights and Duties - Relationship with Trustees / administrators and beneficiaries XIII. Foundation Deeds - Drafting a foundation deed - Types of Foundations - The 2nd Schedule, Civil Code (Cap. 16, the Laws of Malta) Reading list: Theses It is recommended that the various theses that have been submitted on the subjects of Trusts Law, fiduciary obligations and foundations be consulted in conjunction with the Syllabus; Articles - The various articles published in the Trusts & Trustees journal (Oxford University Press) are recommended for reading; - Trusts e Attivita’ Fiduciaria (Maurizio Lupoi); - Trust Law International (Butterworth Tolley); - Various online resources are also recommended. Publications - Hayton, D.J. Fundamental Principles of the Law of Trusts (4th ed. 2003, London, Sweet & Maxwell); - Hayton and Marshall: Commentary and Cases on the Law of Trusts and Equitable Remedies by David J. Hayton and Charles Mitchell (Paperback - 26 Jul 2005); - Hayon DJ, Matthews P and Mitchell C, Underhill and Hayton: Law of Trusts and Trustees (17th ed, 2006, LexisNexis Butterworths); - Hackney J, Understanding Equity and trusts (1987, London, Fontana Press); - Edwards R and Stockwell N, Trusts and Equity (8th ed., 2007, London: Pitman); - Martin J.E., Hanbury and Martin’s Modern Equity (17th ed, 2005, London: Thomson Sweet & Maxwell); - Pettit P.H., Equity & the Law of Trusts (10th ed 2005, Oxford University Press); - Hudson, Alastair, Equity & Trusts (5th ed. 2007, London: Routledge-Cavendish Publishing Ltd); - Oakley A.J., Parker and Mellows’ Modern Law of Trusts (8th ed. 2003, London: Thomson Sweet & Maxwell); - Hayton D.J. and Mitchell C, Commentary and Cases on the Law of Trusts and Equitable Obligations (12th ed. 2005, London: Thomson Sweet & Maxwell); - Virgo G. ed Maudsley & Burn’s Trusts & Trustees – Cases & Materials (6th ed 2002, London: Butterworths); - Mowbray J et al, Lewin on Trusts (18th ed., 2007, London: Thomson Sweet & Maxwell); - Mc Ghee J (ed.) Snell’s Equity (31st ed., 2005, London: Thomson Sweet & Maxwell); - Hayton DJ, Kortmann SCJJ and Verhagen HLE (eds) Principles of European Trust Law (1999, Dordrecht: Kluwer/Tjeenk Willink); - Chambers R, Resulting Trusts (1997, Oxford: Clarendon Press); - Oakley AJ, Constructive Trusts (3rd ed, 1997, London: Sweet & Maxwell); - Tudor on Charities (8th ed, 1995, London: Sweet & Maxwell); - Wadham J (ed.), Willoughby’s Misplaced Trust (2nd ed., 2002, Saffron Walden: Gostick Hall); - Matthews P and Sowden R, The Jersey Law of Trusts (3rd ed 1994); - Book Chapter: Ganado M and Griffiths G. LL H ‘The Malta Trusts Project: The Genesis of a New Trusts Law in a Civil Jurisdiction’ in Dixon and Griffiths (eds) Contemporary Perspectives on Property Law, Equity and the Trust (2007, Oxford University Press); - Gothard Charles (ed) The World Trust Survey (Oxford University Press, 2010) – Malta Chapter by Cremona, Anthony; - Vella Sciriha P, To Trust or Not to Trust – The New Law (2004, Malta: published by authoress); - Maltese Cases and Materials on Trusts and Related Topics (Volume I, IFSP 2004); - Maltese Cases and Materials on Trusts and Related Topics (Volume II, IFSP 2008); - Duccio Zanchi (ed), Il Trustee nella gestione de Patrimoni – responsabilita’ e risoluzione dei conflitti (1st ed., 2009, G. Giappichelli Editore s.r.l.); - Private Foundations: A World Review (Oxford University Press, 2009). |
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| ADDITIONAL NOTES | Students taking this study-unit need to have a background in law. | ||||||||
| STUDY-UNIT TYPE | Lecture | ||||||||
| METHOD OF ASSESSMENT |
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| LECTURER/S | Anthony Cremona |
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The University makes every effort to ensure that the published Courses Plans, Programmes of Study and Study-Unit information are complete and up-to-date at the time of publication. The University reserves the right to make changes in case errors are detected after publication.
The availability of optional units may be subject to timetabling constraints. Units not attracting a sufficient number of registrations may be withdrawn without notice. It should be noted that all the information in the description above applies to study-units available during the academic year 2023/4. It may be subject to change in subsequent years. |
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