Certainty of Intention:
Did the settlor mean to create the trust?
Re Krayford: a trust can be created without using the word 'trust' or 'confidence' but rather whether in substance there is sufficient intention

Precatory words "hope, confidence etc" do not immediately create a trust

Re Adams and the Kensington Vestry: "I give, devise and bequeath all my real and personal estate...in full confidence that [my wife] will do what is right". Held, this was an absolute gift to his wife, not a trust. Precatory words not enough to make a trust, the whole will must be considered to find the testators intention.

Lambe v Eames: Husband had left property to his widow for the benefit of herself and family, however the widow gave money to someone who wasn't her family. Held, there was no trust, the widow was absolutely entitled to give the property to whomever she wanted. Precatory words were less likely to be interpreted to create a trust: James LJ- "I could not help feeling that the officious kindness of the court of chancery in interposing trusts where in many cases the father of the family never meant to create trusts, must have been a very cruel kindness indeed'

Re Steele's Will Trusts: the wording of a gift was the same as in Shelley v Shelley therefore a trust was established despite the use of precatory words as the draughtsman had deliberately followed old precedent.

Failed gifts:
Jones v Lock: father wrote a cheque for his baby son. Although there was an intention to benefit the child, there was no intention purposefully create a trust: the intention was that of an outright transfer. When creating a gift, if it is not properly completed with the required legal formalities, a trust could be found as equity would not "perfect an imperfect gift".

Shah v Shah: attempted to give shares as a gift "I am holding shares immediately for you" however, the court held the wording amounted to a trust. Note: I hold the shares for you

Burden of proof:

Re Snowden: an elderly lady left property to her brother claiming he would 'know what to do'. No intention was found. The burden of proof [for a secret trust] rests upon the person claiming that it exists through the ordinary civil standard of proof (on the balance of probabilities).

Gold v Hill: Under prison rules the prison governor must hold onto prisoner's cash. Prisoner asked for interest on top of the original sum. This was not a trust as there was no intention therefore the governor had no duty to invest in the money and so does not owe the interest.

Paul v Constance: An intention to create a trust can also be inferred from the donor's conduct. Dispute over whether Constance's wife or his new partner,Paul, was entitled to money held in a bank account under his name. Constance had told Paul multiple times over a long period that the money was 'as much yours as mine'. They also paid some joint bingo winnings into the account. Held, these actions were sufficient to infer that Constance had the intention to create a trust for equal shares in the money.

Sham Intentions:
Midland Bank v Wyatt: Mr & Mrs Wyatt, on legal advice executed a trust over their home, the document was professionally drawn by their solicitor. Mr Wyatt later borrowed from the bank on the security of the house.and did not inform the bank of the trust. When the bank started proceedings to recover, the trust was produced. It had been signed and ignored until convenient, trust was held to be a sham as there was no intention for the trust to be used.

Business:
Don King Productions: a boxing promoter purported to assign to a sponsorship agreements, most of these contracts contained express prohibitions against assignment and all of them concerned personal services. A purported assignment can take effect as a declaration of trust of the contractual rights themselves. Within commercial or business situations the intention of the parties does not have to be entirely clear in order to create a trust.

	Erstellt von cadhla_corrigan vor mehr als 12 Jahre

LLB Trusts and Equity (2. The Three Certainties) Notiz am The Three Certainties, erstellt von cadhla_corrigan am 08/04/2014.