Certainty of Intention

Certainty of Intention

1. Settlor must have had an intention to create a trust as opposed to something else.

   • Court is prepared to infer an intention from circumstances

2. Paul v Constance

   • can create a trust without knowledge of legal principle as long as clear that a trust was intended

3. Re Kayford

   • no need for word 'trust' - words must be obliging rather than appealing - appealing words = precatory words eg hope/desire/wish

4. Re Farepak

   • most academics accept the decision is one decided per incuriam the decision in Re Kayford

5. Mussoorie Bank Ltd

   • precatory words - no certainty of intention

6. Executors Act 1830

   • required trustees to hold property in an appropriate manner - subsequently the courts tightened their approach

7. Lambe v Eames

   • precatory words were too uncertain to create a valid private express trust

8. Re Steele

   • exception where the settlor is clearly relying on previous precedent in order to establish a trust

9. Cominskey

   • Court will look at entire construction of the provision to establish intention