Ohne Titel

THREE CERTAINTIES

1. Certainty of subject

   • Must be clear what property is on trust
     • trust will be void if courts, beneficiaries or trustees don't know whats being held
   • Beneficial interest must be clear
   • Palmer v Simmonds 1854
   • Trusts of part property
     • Bulk of tangiable propertySky
     • London Wine Co 1986
     • Bulk tangiable property: Trust property only certain when segregated
     • Shares: If different types or companies the hunter v moss rule will not apply and the trust will be void if there is no further identification of the relevant property
   • Beneficial interest/trustees must be certain
     • Boyce v Boyce
     • Re Golay's WT 1965
   • LACK OF CERTAINTY OF SUBJECT MATTER: TRUST FAILS AND PROPERTY RETURNS TO SETTLOR/ESTATE ON RESULTING TRUST

2. Certainty of Object

   • Who are the beneficiaries
   • Not applicable to charitable trusts
   • Fixed trusts
     • A full list of beneficiaries must be created/be able to be created
     • IRC v Broadway Cottages Trust 1955
     • All beneficiaries must be identifiable
   • Discretionary trusts
     • Same test as for fiduciary powers
     • Mcphail v Doulton 1971
     • Whether it could be said with certainty that any given individual is or is not a member of the class
     • Only if a class of beneficiaries is conceptually certain will it satisfy the test
   • LACK OF CERTAINTY OF OBJECT:

3. Certainty of intention

   • Considers all aspects of the case
   • Equity looks to intent rather than form
   • Lambe v Eames 1871 - Distinction between precatory and imperative words
   • Precatory words: A hope, wish or moral obligation
     • Generally indicates a gift is inteded
       • May indicate a trust Comiskey v Bowring-Hanbury 1905
   • Imperative words: A command, a duty
     • Generally indicates a trust/power is intended
   • Conduct
     • Paul v Constance 1977
     • May constitute intent
   • LACK OF INTENTION: DONEE TAKES PROPERTY ABSOLUTELY LASSENCE V TIERNEY 1849
   • Surrounding evidence
     • May shed light on intention of parties
     • Staden v Jones 2008