Trusts

This subject has the following teaching availabilities in 2011:

LAWS50023 Legal Method and Reasoning; LAWS50024 Principles of Public Law; LAWS50025 Torts; LAWS50026 Obligations; LAWS50027 Dispute Resolution; LAWS50028 Constitutional Law; LAWS50029 Contracts; LAWS50030 Property; LAWS50031 Legal Theory.

The Melbourne Law School welcomes applications from students with disabilities. It is University and Law School policy to take all reasonable steps to enable the participation of students with disabilities, and reasonable adjustments will be made to enhance a student’s participation in the School’s programs.

The inherent academic requirements for the study in the Melbourne Law School are:

1. The ability to attend classes and actively engage in the analysis of complex materials and debate;
2. The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
3. The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
4. The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
5. The ability to work independently and as a part of a group;
6. The ability to present orally and in writing legal analysis to a professional standard.

Students must possess behavioural and social attributes that enable them to participate in a complex learning environment. Students are required to take responsibility for their own participation and learning. They also contribute to the learning of other students in collaborative learning environments, demonstrating interpersonal skills and an understanding of the needs of other students. Assessment may include the outcomes of tasks completed in collaboration with other students.

Students who feel their disability will prevent them from participating in tasks involving these inherent academic requirements are encouraged to contact the Disability Liaison Unit: http://www.services.unimelb.edu.au/disability/.

The subject allows students to develop an understanding of the law of trusts, including: the concept of the trust and its contemporary applications; the distinction between trusts, trust powers and powers; a comparison of the trust with other fiduciary relationships; the principles governing the creation of express trusts; the role of public policy in the creation and enforcement of trusts; the principles governing the recognition of trusts for charitable purposes; an analysis of resulting and constructive trusts; the duties of trustees, with special reference to the duty to invest; and remedies for breach of trust, with special reference to the distinction between personal and proprietary remedies.

The subject builds on the knowledge of trusts that students will have acquired from the compulsory subjects Obligations and Property. Its emphasis is not on old Chancery traditions or the history of the trust. Instead, Trusts emphasises contemporary applications of the rules, principles and remedies surrounding the trust. Moreover, it explores issues in contemporary trusts law that are presently unresolved and the subject of contention. But it also presents its subject matter systematically, proceeding from first principles, which is not possible when dealing with trusts in subjects like Obligations and Property. As a result, it is hoped that, in addition to its primary objectives, Trusts will help students to ‘tie up loose ends’ that have emerged while thinking about trusts in Obligations and Property. Furthermore, given its subject matter, Trusts helps to prepare students for the compulsory subject Remedies and the popular optional subject Restitution.

The aim of this subject is for students to develop an understanding of the law of trusts through close reading of cases, statutes and scholarly writing and through participation in class discussion. It is expected that, on completion of the subject, students will understand the essentials of trusts law and should be able to:

• Identify, analyse and challenge the basis of judicial decisions and legislation on the law of trusts;
• Apply relevant principles to particular fact situations and develop creative arguments as to ways in which those principles could be applied to novel fact situations;
• Draft effective provisions of trust instruments in light of relevant principles;
• Evaluate relevant principles and analyse particular problems from a range of theoretical perspectives; and
• Utilise comparisons with other legal systems to analyse and evaluate the ways in which particular problems are addressed by the Australian law of trusts.

Supervised Examination (100%).

This subject is not available as a breadth subject.

On completion of the subject, students should have further extended and polished the following generic skills developed during the first year of the JD degree:

• Attitudes towards knowledge that include valuing truth and openness to new ideas;
• The capacity for close reading and analysis of a range of sources;
• The capacity for independent, critical and creative thought and reflection;
• The capacity to solve problems, including through the evaluation of information;
• The capacity to communicate, both orally and in writing;
• The capacity to plan and manage time; and
• Intercultural sensitivity and understanding.