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Proverbs 2:9
"Then shalt thou understand righteousness, and judgment, and equity; yea, every good path."

The History of Equity

In 1615, the primacy of equity over common law was established by decree of King James I, as outlined in the following maxim: "Whenever there is a conflict between law and equity, equity always prevails." 

What this basically means is, if you can't find a remedy in the common law, then once you have exhausted your common law remedies you should look to equity for remedy. In which case you'll need to at least understand the following main maxims of equity:

12 Core Maxims of Equity

1. Equity will not suffer a wrong to be without remedy. 

2. Equity follows the law. 

3. Where there is equal equity, the law prevails.

4. He who seeks equity must do equity. 

5. He who comes to equity must come with clean hands. 

6. Equity aids the vigilant and not the indolent (those who delay/sleep on their rights). 

7. Equity looks at intent rather than the form.

8. Equity imputes an intention to fulfil an obligation.

9. Equity regards as done that which ought to be done.

10. Equity acts in personum.

11. Equity will not assist a volunteer.

12. Equity will not allow a statute to be used as an engine of fraud. 

Equity is Your Saviour

King James I, the author of the King James Bible, established the rule (now a maxim of equity) that whenever equity and law conflict equity shall prevail.

Also, in his speech, in the Earl of Oxford's case in 1615, Lord Chancellor Elsemere observed that "the office of the Chancellor is to correct men's consciences, for frauds,  breaches of trust, wrongs and oppressions of what nature soever they may be, and to soften and modify the extremity of the law."  

And "when a judgment is obtained by oppression, by wrong and of hard conscience, the Chancellor will frustrate and set it aside."

Equity is the law of Trusts 

Equity is trust law, it governs trusts. A trust always has 4 elements to it, including 3 roles, which are the Settlor/Grantor/Executor, the beneficiary/beneficiaries and the trustee. The Settlor is what we call the Grantor in England and the UK, the Grantor/Trustor is the name given to the same role in America and this is the man or woman who sets up the trust and therefore determines the rules of it.

These 3 roles are not necessarily always 3 different people. A Settlor can also be a beneficiary, but a trustee cannot. A trust must also have a res, which is the name given to the property the trust was built for, so this is the fourth and final, element of a trust, all four elements are essential. The res is for the benefit of the beneficiary/beneficiaries. 

The Settlor is the one who creates the trust, puts the property, called the res, into the trust and makes the trust law when he/she declares the trust/makes a trust declaration (indenture in the US), verbally or written down, either way the existence of a trust needs to be proved.

The Settlor also assigns the trustee who is the administrator of the trust (this could be the Settlor themself or someone else) for the benefit of the beneficiary. 

Trusts - The 3 Certainties

If you're not able to prove a trust then one doesn't exist. In order to prove a trust you must prove intention to create one, for which there is the rule of 3 certainties as follows:

1. Certainty of intention to create a trust. 

2. Certainty of the identity of the subject matter comprising a trust fund. 

3. Certainty of the beneficiaries or the objects of the trust or power in question. 

The rule of 3 Certainties explained  in more detail 

1. Certainty of intention to create a trust simply means,  that you must have a clear intention to create a trust, for the benefit of the beneficiaries.  We can do this by first creating a trust declaration/deed/memorandum in the UK or indenture in the US, to express the trust and by noticing the trustees, and there is no specific wording to be used, except when dealing with land, but as long as the intention to create a trust is clear, that's the important thing. As is keeping everything separate and special. So if we open a bank account for the res, this must be a special bank account solely for the use of the trust and must not be used for any other funds, out or in; otherwise it will be deemed as 'comingling'. 

When appointing trustees, there are 3 types of notice we can use:

1. Actual - meaning notifying directly, whether by post or process server;

2. Implied - meaning if you are notifying an agent of the trustee, like a solicitor/attorney for example, then it is implied that the trustee has been notified as well, as notice to agent is notice to principal. 

3. Constructive notice - this is done by public notice and means it is construed, that if I have notified the public, that you should be aware.
An important note here, is that the three parties to a trust, do not need knowledge that they are forming a trust relationship, for it to still be seen and recognised as a trust by law. This is the reason it's always important to qualify or restrict your signature, otherwise otherwise are unknowingly giving permission for other parties to construe a trust relationship in which you are the not the beneficiary but the trustee, and the trustee is always the party that takes care of any bills or debts. 

Anyway, back to notifying the public, for instance, here in the UK, a number of results came up after i entered "legal notice newspaper UK" into a search engine online, including the following:

London News Online:

https://londonnewsonline.co.uk/public-notices/

Legal Ads:

https://www.legalads.co.uk/services/

(This above website is apparently a ghost website, even though it is still online, apparently it is no longer active, so I thought best to include it here and to point out not to use it). 

Your Local Guardian:
https://www.yourlocalguardian.co.uk/announcements/public_notices/

The Gazette:

https://www.thegazette.co.uk/place-notice

But personally i'd want to at least either send them actual notice, or for two forms of notice to be in place. For actual notice, there must be proof of delivery and acknowledgement of receipt of notice, of the res to the trustees, and if using the a mail service, this must be special delivery, not registered. 

Or there are process servers, which can be found online too of course. A trustee has the option to disclaim within the 21 days we give then in our notice, and to return the property to the Settlor of course. That is unless the trustee is a solicitor/lawyer, as they can't disclaim by law, as they are public trustees by default. 

2. Certainty of Subject Matter

The subject must be specific, for instance if the res is a car, we can't just say 'the car', we say the red BMW, with registration number A12 B345, VIN number 123456789GB etc.

Also the trust fund/res must identifiable, so must not be mixed with other property making it impossible to identify precisely which property is being held on trust. So trust funds must be set apart, kept separate and used specifically and especially for that purpose alone, whether opening a special deposit account or a repository account or whatever, it must be specifically for the use of the trust only. Or if the res is not physical property then different rules apply to identifying it.  

3. Certainty of the Beneficiaries

It must be possible to draw up a complete list of all the beneficiaries and if not the trust is void. 

Also take a look at my 'Creating Trusts' page, below for more info on trusts and also some very important info on HMRC powers regarding your bank account etc:

https://law-5.webnode.com/creating-trusts-restricted

Otherwise, let's continue this journey by heading over to page 18:

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