THE UNIVERSITY OF THE WEST INDIES

PROPOSAL FOR A REVISED COURSE

Campus and Faculty: St Augustine, Faculty of Law

School, Department, or Centre: Faculty of Law

Course Code and Title: LAW3170 Law of Trusts

Semester and Level: Semester I or II, Undergraduate, Level 3

Projected Start Date: January 2022

Mode of Delivery: Face-to-Face

Pre -requisites: None

Co-requisites: None

Anti-requisites: None

Course Type: Elective

Credits: 3

Lecturer: Dr Emma Perot

Contact information: emma.perot@sta.uwi.edu

Office hours: Office hours can be made via email. Please email me your availability and I will find a suitable time for us to meet.

Projected Enrolment: 60 full time year 3 students

1. Course Description

This course introduces students to the basic principles of the law of trusts. A trust is a method of holding property by which the legal and beneficial interest are separated. It is a unique equitable feature of the common law system. Students will be to identify different types of trusts and determine whether a trust is validly constituted. This course will be taught via interactive face-to-face lectures requiring students to engage in dialogue and supplemented with online materials. The course is assessed by way of an in class or take-home assignment, and an examination.

2. Rationale

The course provides students with the knowledge and skills to interpret and apply the law of trusts for their own benefit or for that of their future clients. This course is worthwhile as it equips students with the ability to identify and solve problems relating to this method of property division. The course requires students to evaluate the current common law approach to the law of trusts, which is characterized by inconsistent principles and a near absence of statutory guidance. The course has practical value as it teaches students about methods of holding property and wealth management. Moreover, the course seeks to develop key legal skills including legal research and critical thinking.

Trusts Law is complementary to the other commercial courses such as: Company Law (LAW 3110), Revenue Law (LAW 3150), Introduction to Offshore Law (LAW 3650) Law of Corporate Management (LAW 3120), Law of Corporate Finance (LAW3130), Law of Corporate Insolvency (LAW 3140), Intellectual Property Law (LAW 3760), as well as family law courses: Family Law I (LAW 3210), Family Law II (LAW 3220). The focus of this course is placed on the various types of trusts, many of which are used for personal property holding. However, the elements of a trust conveyed by this course must be understood for further application in the fields of Offshore Financing, Taxation, and Estate Planning. Thus, this course provides foundational knowledge on a complex area of law with far reaching applications.

3. Course Aims/Goals

The Law of Trusts is designed to foster critical analysis and evaluation of the existing laws of trusts of the Caribbean. In the wider context the aim is to motivate students to adopt critical approaches to the law and consider how trust law can be used in different settings by tapping into their cognitive and affective domains. The cognitive domain is engaged by questioning the legal status of trusts, but the affective domain is engaged by relating trusts to daily life such as the use of trusts in the family home, land disputes, and charitable organisations. The relationships that govern the trust, that is, the beneficiary and trustee relationship, is examined to consider the position of voluntary and professional trustees, as well as how beneficiaries are protected against misdeeds of trustees.

4. Course Learning Outcomes

By the end of this course, students will be able to:

1. Evaluate the purpose of the law of trusts in relation to its social and economic context.

2. Distinguish trusts from other legal relationships.

3. Identify the formalities required for a valid trust.

4. Analyse whether a trust has been validly constituted.

5. Critique the different forms of trusts: Fixed, Discretionary, Secret, Resulting, Constructive, Charitable, Private-purpose.

6. Appraise the application of trusts law to the family home in the Commonwealth Caribbean context.

7. Analyse the status of charitable institutions and the benefits of charitable trusts and non-charitable purpose trusts.

8. Integrate the various elements of trusts to choose the most suitable methods of holding property in given circumstances.

5. Course Content

This course is divided into 5 themes. The course is delivered by way of 2-hour lectures and 1-hour tutorials on a weekly basis.

Theme 1: Introduction to Trusts Parties to the Trust

Time: 2 weeks

In its most basic form, a trust is created when a settlor meets the criteria of the three certainties and causes property to be divided into the legal interest governed by trustees, and the beneficial interest held by beneficiaries. Trustees have duties that they must fulfil in the discharge of the obligation, and beneficiaries have rights that allow a level of monitoring of trustee actions.

Theme 2: Express Trusts

Time: 3 weeks

Express Trusts are deliberately created by the identification of the three certainties: intention, object, and subject matter. The most basic express trust is a fixed trust where each of these is clearly identifiable, but discretionary trusts may cater to a class of beneficiaries, known as objects, or allow trustees discretion as to ow divide the subject matter (property) of the trust. Trustees may additionally have powers in dealing with the property that they are not obligated to exercise. In between discretionary trusts and powers is a mid-way instrument knowns as the power in the nature of the trust which allows for the court to treat an action as mandatory although it may have initially appeared discretionary.

Another type of express trust is the secret trust which allows the settlor to hide the true beneficiary by identifying someone who is actually a trustee as a beneficiary within a will. There are additional requirements of communication and acceptance by the trustee for this type of trust to be formed.

Additionally, there are instances where a trust may have been attempted to be created, but was not properly constituted. In some events, the court may consider the property as held on trust until the final legalities are completed, or may consider the passing of property a gift. Additionally, there are situations unique to death such as the rule in Strong v Bird and the donation mortis cause which dictate how property is treated where a promise is made but not fulfilled by the deceased settlor.

Theme 3: Implied Trusts

Time: 1 week

Implied Trusts are divided into resulting and constructive trusts. Both these types of trusts are established by the courts based on the intention of the parties. They are most commonly used in land and home disputes. Additionally, resulting trusts can be found where the creation of an express trust has failed, and the property is to return to the settlor or the estate if the settlor is deceased. A resulting trust may also be found is an express trust or charitable trust has fulfilled its intended purpose, and there is excess property within the trust.

Theme 4: Charitable Trusts

Charitable trusts are trusts which are created for a charitable purpose, as defined by law, and for the benefit of the public. This topic looks at the circumstances in which a charitable trust may be used, and compares it to the use of discretionary trusts for employees of companies. If a charitable trust is unable to be fulfilled, the cy-pres doctrine will facilitate the trust property to be directed to another charitable purpose if there was general charitable intent. In the absence of general charitable intent, the trust property will revert to the settlor or the estate.

Theme 5: Non-charitable purpose trusts

Time: 1 week

Non-charitable purpose trusts are a peculiar form of trust as it is a private trust that does not require a beneficiary. Generally, this is only permitted for charitable trusts which are of a public nature, as non-charitable trusts such as express and implied trusts require a human beneficiary (beneficiary principle). Thus, non-charitable purpose trusts are only recognized for a few narrow categories including the erection and maintenance of tombs and gravestones, and the maintenance of animals.

Theme 5 is the final topic of the course. A review of material will be conducted and students will undertake a second peer assessed mock exam.

6. Readings/Learning Resources

Required/Essential

A Hudson, Equity and Trusts (Ninth Edition, Routledge 2017)

G Kodilinye, T Carmichael, Commonwealth Caribbean Law of Trusts (Third Edition, Routledge 2013)

Recommended

G Virgo, The Principles of Equity & Trusts (Third Edition, Oxford University Press 2018)

Additional material will be uploaded to myelearning.

7. Course calendar - please see submitted word document

8. Teaching Methods

Lecture

The course will be primarily delivered by a two-hour lecture once a week. The lectures will provide a foundational level of information, exposing the core concepts and highlighting the relevant statute and case law. The lectures also include interactive discussions with the students.

Tutorial

One-hour tutorials will complement the lectures by providing students with the opportunity to apply the knowledge learned from lectures and private study to critical and/or controversial problems in trusts law. Moreover, the tutorials will allow students to develop their critical thoughts with their peers.

3

Private Study

Students are expected to do the required reading and conduct further research for their written assessment.

9. Contact and credit hours - please see table in word document

10. Course Assessments Description

Students will be assessed by two formative and two summative assessments.

10a Formative assessments

Two mock exams are administered during the semester.

10a.i Mock Exam Description

The mock exams are open-book to replicate the summative in-class examination. The first mock exam will comprise of one compulsory problem question. The second mock exam will comprise of one compulsory problem question and one compulsory essay question. The mock exams are used as an assessment for learning as students will have the opportunity to develop the skills that they been building in tutorials.

The learning outcomes that will be examined in the first mock exam are:

· Identify the formalities required for a valid trust.

· Analyse whether a trust has been validly constituted.

· Distinguish trusts from other legal relationships.

· Identify the formalities required for a valid trust.

In addition to the above learning outcomes, the second mock exam will also examine the following learning outcomes:

· Evaluate the purpose of the law of trusts in relation to its social and economic context.

· Critique the different forms of trusts: Fixed, Discretionary, Secret, Resulting, Constructive, Charitable, Private-purpose.

· Appraise the application of trusts law to the family home in the Commonwealth Caribbean context.

· Analyse the status of charitable institutions and the benefits of charitable trusts and non-charitable purpose trusts.

· Integrate the various elements of trusts to choose the most suitable methods of holding property in given circumstances.

10a.ii Mock Exam Weighting

The mock exams do not count towards your final grade. They are opportunity for you to practice the skills learnt in this course.

10a.iii Mock Exam Table of Specifications - Please see word document

10a.iv Mock Exam Feedback Process

The mock exam is based on a peer feedback process. The purpose of this is to allow students to see different perspectives, expose them to different styles of writing, and to help them consider how they can improve. If students can give effective feedback on their peers’ work, they are more likely to be able to understand how they can improve their own work. Additionally, receiving feedback from peers will highlight the strengths and weaknesses of approaches to the mock exams.

Students will exchange their answers and mark each other’s mock exams. An analytic rubric will be provided to guide the marking process. Students can choose to remain anonymous for the mock exam, or can exchange with a friend. The ‘workshop’ tool in myelearning will be utilized for the exchange. Students must provide each other with written feedback if they would like additional feedback from the lecturer. In order to receive this additional feedback, students must submit a reflective statement on what they did well and how they can improve, as well as their thoughts on the feedback given by their peers.

10a.v Bias Mitigation

There is minimal risk of bias on the part of the lecturer in the formative assessments as students are responsible for grading each other’s work. Student bias for those who choose to work with friends is mitigated by requiring students to mark using an analytic rubric and providing written feedback.

10b Summative assessments

A take home research assignment done in groups will be administered during the semester, and a final open-book in class examination will be administered at the end of the semester.

10b.i Research Assignment Description

The research essay will be administered mid-semester and will be based on the material covered in Themes 1 and 2 of this Course Outlines.

The learning outcomes evaluated in the research essay are:

· Distinguish trusts from other legal relationships.

· Identify the formalities required for a valid trust.

· Analyse whether a trust has been validly constituted.

· Critique the different forms of trusts: Fixed, Discretionary, Secret.

The research assignment will be done in groups to replicate the experience of working together in a law firm or on a legal policy research team. The law of trusts is often contentious due to the personal nature of property holdings that are often at stake, as well as the inconsistency in court decisions. As such, working together to craft a coherent argument in light of these inconsistencies will allow students to challenge each other’s views, practice their oral and written communication, and present an opportunity for negotiation as they come to an agreement on which view to advance. The group format will also help students develop stronger arguments as counterarguments will inevitably be raised, and must be critiqued in order to succeed.

Examination Description

The examination will be a 2-hour examination where students answer 2 mandatory questions. The examination will be ‘open-book’. Students will be permitted to take notes into the examination room. This method has been adopted so that students can place less focusing on remembering the extensive list of cases and instead concentrate on applying their knowledge to analyse and evaluate issues. Additionally, this method allows students to prepare notes in a similar manner that they would for court preparation. It balances the preparation with thinking ‘on the spot’ that is required in a courtroom setting.

A rubric will be provided to students before the examination to aid in their preparation. The rubric will mirror that used for mock examination 2 so that students would have had the opportunity to practice and receive feedback before the examination.

The examination will cover all material in the course but will place greater emphasis on Themes 3 – 5. The problem question will cover all themes due to the cumulative nature of trust formation that is developed in the entire course, whereas the essay question will focus on themes 3 – 5 to prevent duplication of material covered in the research assignment. As such, the examination will cover all learning outcomes in the course.

10b.ii Summative Assignment Weights

The research assignment is worth 40%. The final examination is worth 60%. An analytic rubric will be provided for each assignment.

10b.iii Summative Assignment Table of Specifications - Please see word document

10b.iv Summative Assignment Feedback Process

For the first assignment, feedback will be given during a lecture slot so that students can learn from other’s performance. Students will be encouraged to ask questions on the allocation of marks. Students will then be required to prepare a reflective statement based on Rolfe’s model (what?, so what?, now what?) on how they can improve so that they can internalize any required changes for the final examination. A feedback forum will be posted on myelearning so students can share their reflections with each other.

The final assignment will take place at the end of the semester. Since class will be finished by the time marking is done, a feedback sheet will be uploaded to myelearning containing comments based on the rubric criteria. These comments will reflect the full range of performance assessments so students can understand how to improve.

10b.v Summative Assignment Bias Mitigation

For the research assignment, marking will be spaced over a period of days to avoid the contrast effect. In addition, after all assignments are marked, a second marking will take place where assignments are randomly selected and marked a second time without reference to the initial mark to ensure that marking has been consistent. To avoid the halo or horn effect, students will only be identified via a group number and their student IDs on their papers.

For the final examination, students will only be identified by their student number so that the names will not be known to the examiner, thus avoiding the halo or horn effect. The same marking process described above will be utilized to avoid the contrast effect.

For both assignments, an analytic rubric will be used so that marks are clearly allocated. Both assignments will also be designed in a transparent, authentic manner that will ensure validity.

11. Programme Goals and Course Learning Outcome Matrix - Please see word document

12. UWI Graduate Outcomes:

· A critical and creative thinker

· An effective communicator with good interpersonal skills

· IT-skilled and information literate

· Innovative and entrepreneurial

· Globally aware and well-grounded in his/her regional identity

· Socially, culturally and environmentally responsible

· Guided by strong ethical values

I will use this pre-assessment before the course begins to gauge the level of knowledge students have. Trusts builds upon principles taught in Equitable Remedies so it is worth determining how much of that course students recall.