three certainties Knight v Knight

three certainties Knight v Knight

1. Intention

   • Look at substance, not form =on construction of the words used and/or from the behavior of the parties
     • Wright v Atkyns dispose of legal and equitable interest and impose obligation on the receiver of legal title
     • Re Kayford - no need for the word trust - intention to segregate money
     • Re Steele - use of the previous model document, implied valid intention - CRITICIZED, DISREGARD ACTUAL WORDING, AND IMPUTES ARTIFICIAL INTENTION
     • Paul v Constance - created without knowing he is
   • precatory word
     • Re Adams and the Kensington Vestry “in full confidence that she will do what is right” -merely words of aspiration, did not impose legal obligation
     • Lambe v Eames – husband to wife “to be at her disposal in any way she may think best” – precatory expression, no intention
     • Comiskey v Bowring-Hanbury “in full confidence” but “IN DEFAULT OF ANY DISPOSITION BY HER THEREOF BY HER WILL
       • consider document as a whole, not necessarily constitute a trust, but the widow cannot keep the property for herself
     • Mussoorie Bank v Raynor - feeling confident that she will - NOT VALID
   • Sham
     • Midland Bank v Wyatt
       • created to prevent creditor claiming against that property, invalid - NO REAL INTENTION FOR TRUST
   • Re Snowden - claimant establish on the balance of probability
   • Quitclose Trust
     • Barclays bank v quitclose investments - MUTUAL INTENTION AND SEGREGATION OF FUNDS

2. Subject-matter

   • Palmer v Simmonds - BULK share
   • Re Golay's - REASONABLE income
     • contrast - Re Jones - part of my estate - not valid
   • Whatever is left
     • must at least be ascertainable
     • In the Estate of Last - benefit pass on to second B after the first B dies - valid - ANYTHING THAT IS LEFT
       • SPrange v Barnard - cashed in shares, residue unascertainable - gift
   • intangible
     • Hunter v Moss - shares
       • identical and indistinguishable, any 50 of the shares capable of forming the subject of trust
     • Re Lehman Brothers International - a trust of part of a fungible mass without appropriation of any specific part of it for the beneficiary does not fail the certainty
   • Entitlement of beneficial interest
     • Boyce v Boyce - method of allocation impossible because beneficiary predeceased - trust fail
     • Burrough v Philcox - beneficial share not specified - equity is equality
       • Provide that its not contrary to settlor's intention - Marguiles
   • after acquired property (which is not certain) constitute uncertainty in subject matter
     • DIFFERENT FROM property that will certainty be acquired
   • > Re Jones – a trust of “such parts of my… estates as she shall not have sold” failed for uncertainty of subject matter
   • CONSEQUENCES
     • • no certainty of trust property whatsoever – there can be no trust and property will remain with settlor/settlor’s estate (susceptible to claims of creditor) • lack of certainty as to beneficial share – trust will fail and (if property has left the settlor) trustee will hold property on resulting trust for settlor/settlor’s estate
   • Tangible
     • Re London Wine Co - property not singled out, 0 trust fail -beneficiary need to identify the specifically that which property this the subject of trust

3. Object

   • Re Astor - must be someone who can enforce the trust
   • Re TXU Europe Group - individually identified or a clearly defined class
   • Fixed trust
     • IRC vBroadway Cottage - finite list - compile a finite list of beneficiaries
       • not possible to draw up URGENT supplier
       • CF s27 trsutee act
         • Make public advert/ announcement, requiring beneficiary to make contact, within the time of not less than 2 months
           • may still claim for the property transferred even if fail to make contact
   • discretionary trust
     • Mcphail v Doulton
       • TEST - whether any person could be said is or is not within the the class
       • Re Baden
         • Stamp LJ-even one "IDK" fails the trust
           • Sachs Lk - for claimant to prove fall within the class - AS LONG AS there's 1 beneficiary in class, valid trust
             • Megaw LJ - AS LONG AS substantial number of people whom are certain
       • for the benefit of employees, ex-employees, relatives or deedendants
   • try to argue secret trust TOO!
   • McPhail v Doulton - Beneciary is so wide that the trust is administratively unworkable, trust will be void
   • other
     • Re Hay’s ST – a trust to benefit anyone in the world would be ineffective - trustees duties are imperative and more stringent than those called upon to exercise a power (so similar terms may be valid in eg a power of appointment)
       • Re Manistry Settlement - administrative unworkable will not affect power
     • CONCEPTUALLY UNCERTAIN -Re Hay’s ST – a trust to benefit anyone in the world would be ineffective - trustees duties are imperative and more stringent than those called upon to exercise a power (so similar terms may be valid in eg a power of appointment)
       • Re Tuck’s ST - where property to be left as long as she marries someone of the Jewish faith - what is meant by the Jewish faith or whether someone is a member of the Jewish faith? - Denning – thought it would be possible to appoint an expert (the chief Rabbi) who would be able to determine any issues of fact

4. Constitution