Certainty of intention

Certainty of intention

1. What is certainty of intention?

   • Must be clear that donor intended to create trust
   • Must be clear that beneficial and legal ownership are split

2. Wording

   • Imperative wording NOT precatory wording must be used to show intention
   • Re Hamilton
     • Re Steele's Will Trust
   • Lambe v Evans
   • Re Adams and Kensington Vestry
   • Re Kayford
   • Comiskey-Bowring v Hanbury

3. Conduct

   • Intention can be inferred from actions
   • Paul v Constance
   • Jones v Lock
   • CRITICISM of cases
     • GOFFAT - Argues that case P v C was given benevolent construction. General intention present but not specific intention. Therefore, trust should not have been held as valid Only difference in cases was judicial attitudes at the time.
     • MARTIN - Agrees with Goffat. Holds that P v C was 'borderline' case and was given a wrong judgement.

4. Genuine intention

   • Must be clear that the intention to create a trust is genuine.
   • A v A
   • Midland Bank v Wyatt

5. Consequence of lack of intention

   • Trustee takes gift absolutely. Beneficiary and donor left with nothing.