Flashcards
The 3 Certainties
Cards in this deck (27)
- 1Re Gulbenkian regarding certainty of intention:Lord Upjohn said that in cases of ambiguity the court must use 'innate common sense and desire to make sense of the settlor's intentions, however obscure and ambiguous the language may have been used, to give reasonable meaning to that language'
- 2Jones v Locka father received a check for £900 and said he would 'put it away' for his son. Held not to be sufficient. Lord Cranworth said it would be dangerous if 'loose conversations of this sort' declared a trust.
- 3Lambe v EamesProperty left to T's wife to be at 'her disposal in any way she may think best, for the benefit of herself and her family'. Did not impose an obligation. Did get criticised because it did say to the benefit of her AND her children.
- 4Re AdamsT left property "unto and to the absolute use of" his wife Harriet. He merely said in full confidence that she would do right by the children. Precatory words. Court held it was in fact a gift.
- 5Re Harrison Hart J on words:The mere fact that words in a trust had been used was not inconsistent with any intention that the wife of the testator was to be the absolute beneficial owner.
- 6Palmer v SimmondsIf the creator has described the property as the 'bulk' of something. Not sufficient to constitute subject matter. Bulk cannot be identified.
- 7Re LastHeld that anything that is left of the testator's estate was held to be clear.
- 8Hunter v MossProvides a distinction between tangible and intangible property. Distinguished from Re London Wine Co because H v M was concerned with the intangible (shares in a company) and the wine case was concerned with appropriate of chattels.
- 9Re Golay's Will TrustsT's daughter to 'enjoy one of my flats during her lifetime' & receive 'reasonable outcome from my other properties'. The trust here was upheld but got a lot of criticism as reasonable is an uncertain concept. An objective yardstick was said to have been used to determine reasonable.
- 10White v WhiteA 'small portion of what is left' is insufficient.
- 11Re BoyceT held a number of houses on trust. Daughter predeceased other. Confusion as to which house. Trust failed for uncertainty. No power of discretion, resulting back could not be avoided.
- 12What if subject matter is not established?Depends on kind of U. If identity of T property can't be seen, trust can attach to any property. If part of property is held on trust, and identity is uncertain, the trustee will obtain absolutely. If the problem is how the property is to be divided up then it is a resulting trust. Evident there is no intention for trustee to gain absolute ownership.
- 13Conceptual Certainty:This refers to the precision of the language used by the settlor to define the classes of person whom he intends to benefit.
- 14Evidential Certainty:This refers to the extent to which the evidence available in a particular case enables specific persons to be identified as members of those classes, and so as beneficiaries or potential beneficiaries.
- 15AscertainabilityThis refers to the extent to which the "whereabouts or continued existence" of the persons identified as beneficiaries or P.B can be ascertained.
- 16"Administrative Workability"This refers to the extent to which it is practicable for trustees to discharge the duties laid upon them by the settlor towards beneficiaries or P.B.
- 17Lord UpJohn.Insufficient attention is being paid to the most hallowed principle.
- 18Re Gulbenkian regarding objects:The 'cardinal principle' is that in order to execute a trust "the court of chancery must know with sufficient certainty of objects"
- 19'Full List'In a fixed trust, generally the rule is that the full list test should be applied. It was the same for discretionary trusts historically until the given postulance test emerged after McPhail v Doulten. AKA the "is or is not" test. It is necessary in that circumstance to allow the beneficiary that they do in fact fit within the description.
- 20R v District Auditer.There was an attempt here to set up a discretionary trust for all the people in Ireland. This would have be 'administratively unworkable'.
- 21Gibbs v HardingEnglish HC said that to the benefit the black community of Hackney and various other places would be too broad to sustain a trust.
- 22Re BadenCourt of Appeal considered whether a DT for T's relatives could pass the test. Even if the relative is defined as 'persons descending from a common ancestor'. This trust actually passed as the onus was placed on P.B show they are a descendent.
- 23Did Ireland follow Baden?No. Ireland did not follow the precedent and is still using the full list test as held by Murphy J. in O'Byrne v Daveren. Murphy said he finds the reasoning of the Irish judgement made by Budd J in Kilroy v Parker more convincing than that contained in what is admittedly a conscious effort at law reform in the McPhail case.
- 24Fixed trustSettlor has specified who is to benefit. Full list test is applied.
- 25Discretionary trustT leaves trustees with discretion to choose which members of a class should benefit and for what amount. Test: full list in Ireland and given postulant in UK. IRC v Broadway and Re Parker's Will are both full list examples.
- 26Power of AppointmentThe donee of the power may choose someone to benefit. Whichever of my children for example. Given postulant test.
- 27Re BayleyWhichever of the testator's Irish relatives as his sister should appoint was upheld by the court.
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- Flashcards on The 3 Certainties, created by d.hanlon3 on 30/04/2015.
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- d.hanlon3 · Apr 2015
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- May 11, 2016
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