3 CERTAINTIES - INTENTION Flashcards
What are the alternatives to intending a trust
Gift
Charge
Bank Account
Sham Device
What is a charge?
Similar to a trust, allows person access to certain value from a fluctuating pool
Doesn’t grant right to a particular piece of property = different from trust
Case for gift
MILROy v LORD 1862
- Court keen to point out trusts do not perfect an imperfect gift
Case for sham device
MIDLAND BANK v WYATT 1995
- Trust only created to avoid certain liabilities
- Husband transferred home into wife’s name to avoid a business liability
Case for charge
FOLEY v HILL 1848
Cases where courts inferred intention to create a trust
PAUL v CONSTANCE 1977
Re KAYFORD 1975
Re FAREPACK 2006
PAUL v CONSTANCE 1977
- Money is as much mine as it is yours
- Deemed sufficient intention to establish a trust
Re KAYFORD 1975
- No words of intention to create trust
- By creating a separate bank account for certain monies there was sufficient intention that it be a trust
Re FAREPACK 2006 -> contrasts KAYFORD 1975
- Money put into a Christmas savings scheme by members of public
- Company went bust and the money was lost
- Courts (wrongly?) didn’t follow KAYFORD and said there was no intention for it to be a trust so money was gone
Importance of TITO (No 2) 1977
Use of the word trust doesn’t necessarily create one
Case for moral obligations being different from trusts?
Re ADAMS AND KENSINGTON VESTRY 1884
Re ADAMS AND KENSINGTON VESTRY 1884
- Use of words ‘in full confidence’ did not make a trust, only moral obligation to do something
COMISKEY 1905
- ‘In full confidence’ can create a trust if it is full confidence that rights in property will given to others
WESTDEUTSCHE LANDESBANK v ISLINGTON LBC 1996
- If it is unconscionable that the legal owner of property denies others rights in the property then intention to create trust can be inferred
2 factors dependent for intention to create trust in WILLS
- Wording
2. Context
