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What must ever trust satisfy ?

Every trust except cpt must satisfy 3 certainties

Knight v Knight


What are the 3 certainties and what must they all do

Certainty of intention- is a trust intended
Certainty of subject matter- what property is to be subject to trust and who are the beneficial interests
Certainty of objects- who are the beneficiaries of the trust- is or is not test

They all must be sufficient


Certainty of intention - in relation to the prop in q what must settlor testator have

Settlor or testator must have greater clear certainty of intention - needs to be clear


Why must we satisfy?

1 - trustees need to know their trust obligation under trusts - can be liable for breach of trust if fail to carry out obligations

2 - 3 cert provide trustee with degree of protection by ensuring obligations are clear

3 - satisfying ensures if neck ct itself will be able to admister that trust


What is extra for trusts?

Trusts can be declared orally or in writing

3 cert apply to all trusts but cpt

Must also satisfy formality req in respect of type of property

E.g 3 cert sat but no formality eg not evidence in writing = unenforceable

Settlor to inform trusteee


How is intention established

Intention is established by considering all circumstances of case


What does equity look at

Equity looks at intent rather than form


In working out intention what are the indicators to look out for

Clearest way to demonstrate is to use word on trust


What if On trust isn’t used

If I’m trust isn’t used - cpt will imply a trust where other words are used which are imperative enough to show mandatory trust obligation was intended - ct - imply - imperative


Indicators to look out for no. 2

Imperative, predatory Lang and conduct


Case in regards to conduct

Staden v Jones - not neck refer to word trustee by words/acts done by settlor must have intended that meaning

Also constructive test


What did court also say in staden v Jones

Ct said important to construe whole doc purporting to create trust

Did he really intend trust obl to kick in here, pure words for an absolute gift?


What was said in lamb v eames

Lame v eames Distinct precatory and impl CT’s


What is precatory?

Express hope, wish, moral obligation = usually indicates gift was intended


What is meant by imperative

Express a command, duty to do something - indicates usually trust or power


Examples of this precatory words?

Lambe v eames - way she may think best

Re Adams and Kensington vestry - in full confidence

Re diggles- it is my desire

Mussorie bank v raynor

Re Hamilton- I wish

Re Williams - I bequest that


But - about precatory terms?

Although CT’s guided by language - remember just as there’s no magic in word trust - kinoch v Secretary of State for individ - precatory words will not prevent CT’s from finding trust if that’s what donor intended


E.g of courts not always relying

Comiskey v browning- Hambury

Testator said in full confidence - look at gift how CT’s looked rest of will = trust


What is meant by conduct

Intention can also be conferred by conduct of the donor


What case was in relation to conduct

Paul v Constance - bingo - trust extended


Similar approach to Paul in which cases

Re jay ford Ltd - customer money in diff bank account
Jones v lock - did not create trust
Dhingra v dhingra - trust son was held entitled to money

Saunders v vautier- if you are true owner of money - each can transfer legal title t you and terminate trustee


What is the effect of lack of certainty of intention?

If no intention to create trust or power - donee will take prop as an absolute gift - lassence v tierney & not as trustee for another others


What is so part to this

So if strong imperative = precatory = won’t suffice for cert of int- but courts look at whole - can be a trust but most cases won’t be


Trust will arise when we

If strong / imperative enough that anew obligation trust obligation was intended to the property


What is certainty of intention a question of?

It’s a q of construction


Certainty of subject matter?

2 elements in regards to this


What are the 2 elements of certainty of subject matter

It must be clear what prop is held on trust e.g account / shares - so trust can bite

- beneficial interests must be clear

If not certain or clear trust will fail


What is meant by prop held on trust must be certain

If not clear / trust = void as trustees beneficiaries . Ct won’t be able to determine what is held on trust


What is meant of trust or part prop

This arises where attempt to create a trust over part of a bulk of tangible property


E.g of part prop

E.g furniture in a house or warehouse filled with desktop computers . Where there’s is a trust ofpart of bulk of tangible prop, trust prop will only be certain if separated from trust


Cases for uncertain prop

Palmer v simmonds- the bulk of
Peck c Halsey - some of the best ..
Anthony v dodges
Jubber v jubber
Re kolbs wt


What happened in re London wine co

Re London wine co was uncertain - wine paid for not segregated = unidentifiable


What is contrast case for re London co?

Hunter v miss - didn’t specifically say which 50 shares trust was upheld - on ground that shares were intangible assets - but could disntiguuish shares = controversial case -


What was this approach also endorsed in

Endorsed in re Harvard securities Ltd


What’s good about this distinction

Physical seg and intangible like shares which didn’t need seg, trust could arise- loads of people never liked bc said lacked logic


What’s a note to take in

Sales of gooddd ammendant act 1995 , context of sales - reverse dec in the London to allow prio sellers other creditors look back st this


What happened in Anthony v donges ?

You can have a gift of residue


What about the sales of good act specific section?

S.20 soga 1979 - offers protection to purchases of an unseg part of larger bulk of prop - ass soon as they have paid, purchasers will be considered tenants in common or the whole prop. Has the effect of protecting their purchases from creditors in the ever of liquidation / receivership m

Hw where there is a trust of part of some intangible prop, e.g shares = no need to identify shares to be held on trust


What is a tip you could use here?

Hunter v moss - applies to trusts part of a large whole

Pg- look at facts e.g if portion of shares and diff types of them or relate to shares diff companies = hunger = not apply and trust will be void if not further identification of rel property

Re Harvard securities Ltd in liquidation


How could you get extra marks

Despite fact hunter v miss followed in re Harvard securities Ltd & more recently complex finiancial securites in Pearson v Leahman brothers finance = criticisms


Who were the criticisms by?

Hayton in 1994 110 LQR 335- no of arg


What is arg number 1 -

Come back


Arg number 2?

Come back


Arg number3?

Come back


Why must the beneficiaries interests be certain?

Beneficial interest must be clear


What are cases hat illustrate probs that may arise in this context

Boyce v Boyce - father trust 1 sis.1 due 4 houses - prop clearly identified but Benedict no - trust would have worked if trustees were to choose, but neither trustees or ct could determine Ben


What other case was held uncertain?

Strange v Bernard - held uncertain


Another case?

Re golay wt - q was whether instructions given were certain enough to slow them to carry out terms of the trust - reasonable income 2 names Ben = valid as make was in maintenance cases


Another note:

Legal issues surrounding out of Ben int. Will not apply to discretionary trust- bc extent to which can benefit if not all is absolute discretionary of trustees


What is Link btw certainty of intention of subject matter ?

If lack of cert as to subject matter this will cast doubt on whether settlor truly intended to create trust - mussoriee bank Ltd v ray ore & effect if lack of mast = trust fails and pop will return to settlor / estate on r. T


Certainty of objects beneficiaries?

This is third requirement - cert of object relates to who are the beneficiaries of trust ?

- is every trust not cpt must satisfy this req

Different for fixed and discretionary


Beneficiary trusts - who beneficiary are?

Actual Ben of objects of trust vs purpose trusts - cert of purpose, purpose being object of trust


Fixed and discretionary?

Object of trust usually Ben


Purpose trust

Cpt, ppt look at conveyancer - .. no eq title and no benefitiancy


What about certainty of objects and fixed trusts

Beneficial int are fixed


What is meant by beneficial interests are fixed

E.g trust to Benefit razia and stanhan in equal shares


Order to satisfy the ct if obj req=

Full list of Ben must be able to be created

IRC v broadway cottages trust - all Ben must be able to be indentified


For cert of obj with fixed trust to be valid what are the 3 hurdles that need to be satisfied

1 conceptual certainty
2 evidential certainty
3 administrative workability


What is meant by conceptual certainty ?

Class of Ben need to be certain e.v tall = uncertain trust fails and money then on r. T residuals legatees. - equity abhors a vacuum- can go to settlor or testator trix but they’re dead so resid lega - plug the gap - a . R . T


What is meant by evidential certianty

I.e int are fixed = equal shares _poss to list all ben form which equal div can be calculate The lIST TEST


Case in relation to evidential certainty

IRC v broadway cottages / re gulbenkian
List test - trust and equal shares - don’t always need to find them but you can calculate


What is meant by administrative workability?

Class of Ben must not be to numerous as to render it impossible for trustees to properly administer the trust - r v district ex p west York shire cc

Not valid trust be trus be discreet trust can distribute to whoever = too big for trustees to manage trust

Trust fail r. T to settlor local auth back 2 gov

- load if too wide e.g lord wilberforces e.g of trust all residents in greater loosen.


What about discretionary trusts

Type of trust trustees given power to apparent people as Ben. There’s a class of potential beneficiaries do not hold ben until trustee excercise discretion of trustees


Concept cert class of Ben?

Must be clear have to work it out and admin workability not so bit but workable - but no list test with discr


What about discretionary trusts overall

A diff approach taken in respect if discretion trust where there is key dec


What case was key decision in

Mcphail v doulton


What happened in mcphail?

Opposed list test and replaced with never flexible concept cert - some test as valid power of appointment


What is test for very of obj same as in this case

Same as fid duty - re gulbenkian settlement - where her it could be said with crt that any given unification is or is not memeber if the class


So overall

Cc- is or is not test - in mcphail not too vague


Even though test is established in that case what happened

It was challenged in re Baden no. 2


What happened in re Baden

Look whether valid dt had to consider this test in cert of objects - did relatives and dependnars conceptually certain - they embraced is or is not test - stamp oh = strict interp


What did Megan and sach lj say about test

Said test would be satisfied if certain fell within that case - real and dependent = cc

Does not matter whereabouts \continued existence of a ben is not known


Cases connected to these decisions

Re shields wt
Re Barlow wt
Re daulton wt


So cc in depth

Described as linguistic or semantic certain

A class of Ben will be cc when descriptions enable group to be clearly defined

1 st eg brithsh army - morally upstanding no cos where can line be drawn


What is meant by gifts subject to a condition precedent

Do not require same degree of cc as d t


Dead of gifts subject to a condition precedent

One to which donee will not be entitled unless he or she satisfies the condition e. G 10000 to each my children who grad uni


What was said in re Barlow case

Paintings case

In a gift to class objects only entitled to share of the prop - vital is or is not - hw in this case from and friends given individual opp to purchase paintings = greater degree of uncertainty to whibsatified ndbdid affect app they really - come back


What was said in re v tip

Gift 2 friends = valid as gift to cond preced- discretiojtrusts for friends = void as imposs to define friends socould he said any India’s is or is not class


Distinguishing cc & evidential uncertainty

Important 2 disting
Cc = cert of class
Evidential c - whether not individ can be found or progeny
If class c uncertain- trust void - but evil link will not defeat trust
Important refer re Baden although agreed cc depth all 3 judges for diff reasoning


3 different approaches

- Sachs lj liberal approach
- Megaws lj middle ground
- stamp lj strict approach


What is sach Ljs approach



What is Megaw ljs appraoch



What is stamp ljs appraoch



Extra marks for this

The issue cert obj for dt= complex - own detailed notes on mcphail v doulton re Baden and then deepen understanding of this reading Emery’s discussion of this issue


Can conceptual uncertainty be cured

Debate whether concept uncertain can be cured by Reference to the definition of the trustees or a third party where trust would fail for conceptual uncertainty


How can sometimes the testator or trix resolve this

Resolve by build into terms of gift on trust the language/ machinery to resolve any conceptual uncertainty So where trust would fail for concept uncert - to said that could say tall means / we could moraine a 3 rd party trustee or someone else- 3 rd party mooned to resolve an 3rd part uncertainty


What was said in re tucks?

The third part could be an independent person


Whilst whT was said by denning lj

Argued that reference to trustees or 3 rd party opinion may be concep uncert.


What did Eveligh ljs reasoning Rest on

The narrower ground that there was no concept uncertainty bc the settlor was in effect saying that his dc of Jewish faith is sams as a concep cert class


Re tucks st ?

Address the validity of conditions precedent it remains unclear whether


What 2 things does it remain unclear whether

1. Same approach would be adopted in respect of a dt with concept uncertain

2. Whether the CT’s would adopt the broad approach of denning lj or re more restrictive appraoch Evelin lj


What do both approaches remain

Problematic . Whereas denning lj appraoch would ensure the valid if many more dt, it would also seem to empower individ named by the settlor to are concept uncert in circumstances where the cr would otherwise declare the trust void.


On the other hand eveligh ljs appraoch?

Maintain the need for c.c but rests n a very fine factual district that many settlers will not appreciate


What other cases said 3rd a party could be trustee

Re Coxen
Re Jones
Re leek
Re Wright’s wt
Re Coates


What is the effect of lack of cert of objects

Trust which lacks cert of objects will be void and return on r. T to the settlor his or her estate


Company d. T and fid powers?

As you have seen following mcphail v doulton the test for certainty of once’s for the d.t and did powers is now the same . Hw it is important to remember that there are still important differences


The duties under d.t / fid power
Disc trusts

Mcphail v doulton establishes that trustees have following duties to
- surge the field to identify the width of class and to
To distribute income from the trust


What is to note here

Watch for no exhaustive d.t which expressly allow the trustees to accumulate income- in such the trustees may delay distributing for some time but must still ultimately distribute at some point


What in regards to fid powers

The donee of a fid power is not under a duty to distribute the property. He re Hays st fid have following duties


What were the following duties

To consider periodically whether to excericse the power

To consider the range of possible objects

To consider the appropriateness of appointment made ie they cannot pick at random/ without reason


What’s a revision tip here

If an arrangement refers to a gift over in default or a distinction that remaining money is to return to settlors estate this will be a fid power as the wording demonstrates that there is not a dirt to distribute


E.gs of this



What are the rights of Members of class?


Members of the class are not beneficiaries until they have been appointed to the trust until that time they merely hold a type of hope of beneficitting this means that menebers of the class may challenge the dec of the trustees but cannot claim that they are entitled to be allonfion as this at the abolsite discretion of trustees


Decisions may be challenged on the basis that the trustees have :

Appointed outside the class
Failed to consider their reasons for along
Acted in bad faith in making an appointment eg appojting slinky to close friends within the class


What is a notes to make

If all ben are a sui juris they may act together to wind up the trust under the rule - Saunders v vautier as there an the entire beneficial trust


What about fid powers again?

As with dt embers of a class under fid power cannot claim to be entitled to be appointed hw dec may be challenge on basis that fid have

Appointed outseide class
Failed to carry out their fid obligations re Hays st


What unlike dt

Unlike dt the dt will not intervene to compel the fid to excercise their power - furthermore the objects of fid power cannot take adavanrge if the rule in Saunders v vautier as the beneficial int lies with the person entitled to the gift other in default of the appointment


So in all what are the key cases?



What are the key debates overall?