Originally Posted by
ohiofoiarequest
Using Illinois law for instance...same will apply to whatever venue worldwide..refer to the leading jurisprudence literature in your jurisdiction...
When parties engage in certain relationships such as attorney and client, principal and agent, trustee and beneficiary, or partners, a fiduciary or confidential relationship arises as a matter of law. It is also clear that, even in the absence
of such traditional categorizations, the relationship will be found to exist as a matter of fact when one party reposes trust and confidence in another
who thereby gains a resulting influence and superiority over the first.
See McFail v. Braden,19 Ill.2d 108, 166 N.E.2d 46, 51 – 52 (1960); Collins v. Nugent, 110 Ill.App.3d 1026, 443 N.E.2d
277, 66 Ill.Dec. 594 (1st Dist. 1982). In determining whether a fiduciary relationship has arisen, factors to be considered are degree of kinship, if
any, disparity in age, health, mental condition, education, and business experience between the parties, and the extent to which the allegedly subservient party entrusts the handling of his or her business and financial affairs to the other and
reposes faith and confidence in the other. The mere existence of a confidential relationship prohibits the dominant party from seeking any selfish benefit. Collins, supra; In re Estate of Wernick, 151 Ill.App.3d 234, 502 N.E.2d 1146, 104 Ill.Dec. 486 (1st Dist. 1986).
See also In re
Estate of Long,
311 Ill.App.3d 959, 726 N.E. 2d 187, 244 Ill.Dec. 591 (4th Dist. 2000);
Ransom
v. A.B. Dick Co.,
289 Ill.App.3d 663, 682 N.E.2d 314, 322, 224 Ill.Dec. 753 (1st Dist. 1997).
A power of attorney gives rise to a general fiduciary relationship between the grantor of the power and the grantee as a matter of law. Lemp v. Hauptmann,
170 Ill.App.3d 753, 525 N.E.2d
203, 121 Ill.Dec. 397 (5th Dist. 1988). See also Robert S. Hunter, ESTATE PLANNING AND
ADMINISTRATION IN ILLINOIS §78.9 (3d ed. 1997), for further guidance on whether a fiduciary relationship exists.
Elements of a trust:
1. Purpose
2. Parties
3. Intent
4. Specific Trust Res
5. Method of Formation
Trusts reside with the inherent exclusive jurisdiction of Equity.
The exclusive jurisdiction of equity is where the conscience of the state resides.
The Equity jurisdiction has been called the conscience of the laws.
In fact, there is a book called The Conscience of the Law.
Highly recommend this book in order to make sense of how the world is operating for these past few thousand years (at least).
Many societies have existed without law....."Indeed, when Gentiles, who do not have the law, do by nature things required by the law, they are a law for themselves, even though they do not have the law. 15 They show that the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts sometimes accusing them and at other times even defending them."
My family, count me among the "unbelievers" who do by nature the things required by law, thereby fulfilling every jot and tittle. I am a law unto myself (faithfully executing the special trust reposed within me by g-d) and my conscience bears witness...my thoughts accuse me and alternately defend me. I prefer responsibility to dogma. Mother informed me that g-d helps those who help themselves. A lesson many well intended Xtians have gone to the grave never learning, I suspect.
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