“Judges have been far too willing to allow the circumvention of statutory provisions requiring that

transactions are effected or evidenced by signed writing. Those provisions are included for good
reason.”

Critically discuss.

[Stance: it is correct that judges have been too willing to circumvent statutory provisions, particularly
section 53(1)(b) and (c) of the LPA 1935 and s.9 of the WA 1837. This essay will demonstrate that such
intervention has not always been justified and has in fact tended to nullify the ‘good reason’ for the
enactment of the provisions. It will proceed by examining each provision in its right context and testing
to extent to which the exceptions made by courts are consistent with the purposes of the provision.
Ultimately the essay concluded that some of the exceptions to s. 53(1)(c) are sensible and consistent
with the objectives of the provisions. However, the other exceptions, most notably the fraud-based
exceptions to s.53(1)(b) LPA 1925 and s.9 of the WA 1837 are not sound, nor is the dehors the will
theory.]

1- Explain each provision

2- Explain each exception along with rationale
3- Give your comment on each provision and exception

a. S.53(1)(b) LPA 1925 = test of the provision; reasons behind enactment (statute of frauds) + R
v B exception; critique.
(what does the provision sau; what type of evidence it concerns; why was it introduced;
when the exception applies) – as condensed as it can get. The crux of this part will be the
exceptions + critque
b. S. 53(1)(c)
c. S. 9 Wills Act 1837

Your essay must be argumentative and not merely descriptive.

Statutory provisions requiring transaction to be effected by signed writing:

- Section 53(1)(c) of the LPA 1925: -

 Requires all dispositions of subsisting equitable interests to be in writing
 Rationale = prevent fraud + protection of the trustees so that they know at all times
who the real beneficiaries and so that they do not unwittingly commit a breach of trust.
 Circumvention:
o Specifically enforceable contracts (Oughtred v IRC; Neville v Wilson)
 Rationale = “equity sees as done that which ought to be done” – equity
imposes a vendor-purchaser constructive trust in anticipation of the
 performance of the contract the moment the agreement is reached.
SUSPECT CIRCUMVENTION
o Sub-trusts (declarations on) – Nelson v Greening & Sykes
 Rationale of circumvention: the sub-trusts retains an equitable interest
devoid of beneficial content; without such retention he could not have
been holding anything on trusts; since the interest retained; s 53(1)(c)
does not apply.
Logic of circumvention = arguable both ways. Brian Green argues that
all declaration of sub trusts ought to be in writing because s.53(1)(c)
was meant to protect ‘beneficial interests’ and not equitable interests
devoid of beneficial content: in any case s. 53(1)(c) is designed to
protect trustees; trustees are interested in knowing whom to give
benefit to; if they directly give the benefit to the sub-beneficiary they
may face a risk of breach of trust claims.
o Vandervell – transfers intended to make the transferee absolute legal owner
 Rationale of circumvention: that s 53(1)(c) enacted to prevent ‘hidden
oral transactions’. When a care trustee transfers legal title to another
on the instructions of the beneficiary, there is nothing hidden and so on
a purposive approach, s. 53(1)(c)’s mischief is not engaged. Thus may
be convincing BUT it is difficult to reconcile with Grey v IRC
- Section 9 of the Wills Act 1837: -
 Requires all testamentary dispositions to be in writing, signed and witnessed + attested
by two witnesses
 Rationale = prevent fraud
 Circumvention:
o Secret trusts: FSTs and HSTs that are either not disclosed at all or bot fully
disclosed on the face of the will, yet are enforced.
o Rationale = 1) fraud theory; 2) dehors the will theory
o Fraud theory = oral evidence ought to be admitted when not doing so would
allow the secret trustee commit fraud
 Problem = based on circular reasoning + does not adequately explain
why oral evidence should be admitted when it has been deemed
unreliable by the parliament
o Dehors the will theory = STs are inter vivos trusts that are not caught by s.9 of
the Wills Act; they arise outside the will.
 Problem = this theory is based on the manifestly false assumption that
secret trusts are not testamentary dispositions. In fact, secret trusts
bear all the characteristics of a testamentary dispositions and are
therefore caught by s.9 if the WA + no reason as to why oral evidence
should be admitted when warned against by Parliament.

Statutory provisions requiring transaction to be evidence in signed writing:

- Section 53(1)(b) of the LPA 1925 –

 Declarations of trusts of land must be manifested and proved by some writing
 Rationale = prevent fraud
 Circumvention:
o Doctrine of R v B
o Rationale = a statute enacted to prevent fraud cannot be used as instrument of
fraud; thus anyone seeking to fraudulently deny the existence of a trust by
relying on lack of writing will be prevented from such reliance.
o Problem = circular reasoning