3 Certainties

Question 1

Re Parker

Answer 1

every endeavour should be made to elicit from the contents of the instrument the intention of T

Question 2

Paul v Constance

Answer 2

must be clear evidence form what is said or done that there is an intention to make a trust

Question 3

Thexton v Thexton

Answer 3

a declaration of a trust does not require a technical form of expression. It is a question of construction whether the words used, taking into account the surrounding circs, amount to a clear declaration of trust

Question 4

Re Humphrey’s Estate

Answer 4

T devised all his property to his wife in his will, ‘wished’ she would leave property to the son, held to be insufficient, wife got absolute interest

Question 5

Re Sweeney

Answer 5

T left all property to his wife on ‘express wish’ she would make provision for payment of legatees on her death, held to insufficient and an expression of a wish only

Question 6

Comiskey v Bowring

Answer 6

T left all his property to his wife ‘in full confidence’ she would provide for his nieces, upheld as on true construction of the will there was intention to create a trust

Question 7

Re Kayford

Answer 7

company in financial difficulty put customer money into ‘Customer Trust Deposit Account’, when company went into liquidation court held a trust had been created for the customers, if they had not done this the customer money wouldn’t have been refunded but used to pay creditors

Question 8

Mussoorie Bank Ltd v Raynor

Answer 8

the uncertainty of the subject of the gift has a reflex action upon the previous words and throws doubt upon the intention of T

Question 9

Palmer v Simmonds

Answer 9

T left ‘bulk of my residuary estate’ to an individual, held expression was too vague for there to be certainty of subject matter

Question 10

Re London Wine Co

Answer 10

trust comprised wine in a warehouse that was not segregated from the rest of the stock, held no trust could arise

Question 11

Re Goldcorp Exchange

Answer 11

exchange went into liquidation, claimants argued bullions stored in exchange were being held on trust for them, held no trust arose were unascertained generic goods in the form of unidentified, unsegregated bullion was the subject matter

Question 12

Hunter v Moss

Answer 12

S declared a trust over 5% of his shares in a company, all shares are capable of satisfying trust so it was unnecessary to segregate them

Question 13

Wilkinson v North

Answer 13

held there is no difficulty in a trust of invisible assets such as neat property, IP or book debts

Question 14

Morice v Bishop of Durham

Answer 14

complete list is required for FT so court can control and execute the trust

Question 15

IRC v Broadway Cottages

Answer 15

Jenkins LJ, a trust is void for uncertainty of objects unless the whole range of beneficiaries of objects is eligible for selection is ascertained, rationale was that the trustee needed a comprehensive list to distribute property and if trust failed, court needed a list of potential beneficiaries

Question 16

McPhail v Doulton

Answer 16

Lord Wilberforce remaked a DT is valid if it can be said with certainty that any given individual is or is not a member of the class

Question 17

Re Parker

Answer 17

income from a trust was to go to necessitous nieces and nephews, trust upheld, Budd J held an imperative trust is invalid unless ‘whole class of beneficiaries can be ascertained’

Question 18

O’Byrne v Davoren

Answer 18

Murphy J favoured Budd J’ authority in IRC over McPhail

Question 19

Re Baden’d Deed Trust

Answer 19

term ‘relative’ was considered conceptually certain as it can be defined by reference to the Succession Acto

Question 20

Gold v Hill

Answer 20

trust for named woman ‘and kids’ was sufficiently precise as the intention was clearly to provide for his partner and child

Question 21

McPhail v Doulton (unworkability)

Answer 21

Lord Wilberforce; trust will fail if the definition of beneficiaries was so hopelessly wide as to be incapable of forming anything like a class