Certainties Flashcards
1) Certainty of intention cases ASPMJ
- re Adams and Kensington vestry 1884: in full confidence = ❎
- shah v shah 2010 = holding, declaration ✅
- Paul v Constance “the money is as much yours as mine” joint bank account ✅
This was criticised because even though the words construed a trust it went against the rule in
- Milroy v Lord 1862 that a failed gift will not be a declaration of a trust
- Jones v Lock 1865 confirmed this
Intention when a company goes into liquidation?
Quistclose case = the company lent another company money to pay of its debt, there was a trust for a specified purpose, when the purpose has not been fulfilled then the trust property remains with the trustee to give back to the settlor ie. The lender of the money
Re kayford: the money was held to be a trust because the company had set up a separate bank account for the customers money
Farepack foods case: there was not a trust because the company had tried to set up a bank account three days before they went into liquidation so it was unclear whether there was intention for that property to belong in a trust
2) certainty of subject matter
The subject matter has to be ascertained or ascertainable in order for there to be valid trust property
- Palmer v simmonds “a trust over the bulk of my estate” ❎
- strange v Barnard - woman left husband property to do with what he wanted basically and the remainder to give to beneficiaries “to be divided equally” of choice if he wanted ❎ mere gift
Certainty of subject matter vs personal property - the general rule is that there is no subject matter of a trust because it cannot be distinguished from the personal property
LGHG
- Re London wine co 1986
Bottles of wine were stored in the same place as ones for sale, no trust because couldn’t distinguish ❎ - Re Golay’s WT ‘reasonable income to housekeeper’ was a trust, exception to the intangible property rule - it is possible to objectively ascertain a reasonable income
- Hunter v Moss 1994 - unidentified intangible property will still create a trust because it is all the same, you can’t split intangible property!
- Re Goldcorp exchange ltd 1995 - in comparison unidentified tangible property will not be a trust because with tangible property it is possible to separate it
Lehman brothers
The receipt of the money will be enough to create a trust. If the settlor sells some or all of his shares then the beneficiary can claim
A share in whatever shares remain or in the proceeds of sale. Briggs J in the case found that the receipt of the money creates a trust and this reflects the true intent of the settlor
Certainty of objects - fixed trusts
Fixed trusts test was est in ICC v Broadway cottages 1955 which stated that there must be a fixed list I.e complete list of all of the beneficiaries
- OT computers case: trust for customers was upheld however trusts for the “urgent suppliers” was not
Ascertain ability
- re Benjamin it doesn’t matter if a beneficiary from the list cannot be found or is dead, the remaining beneficiaries will have the shares divided equally and if a missing beneficiary turns up, then they can claim their share from the beneficiaries
Evidential certainty - there needs to be evidential certainly to discover all of the beneficiaries and evidence that each beneficiary belongs in that category is necessary
However if there is uncertainty about a beneficiary then a 3rd party can confirm facts in order to disregard the uncertainty as in Re tucks settlement trust - Jewish Rabi case
Mere powers of appointment test
Given Postulant test - namely the is or is not test which was found in
Re Gulberkian’s settlement - each beneficiary has to be assessed whether they fit into the category or not
Certainty of objects - discretionary trusts
Mcphail v doulton 1972 established that the given postulant test can be used for discretionary trusts as opposed to the fixed list test
REMEMBER CDPNS wilberforce required the trustees to
- examine the field for class and category
- make diligent and careful enquirers
- decide on principles and proportions
- select individuals on needs and qualifications and
- make a more systematic and wider survey than trustees of mere power
CDPNS
Re Baden’s deeds trust No 2 1973
case went back to the coa to apply and interpret the given postulant test in light of discretionary trusts
- case concerned whether “relatives” and “dependants” was ascertainable to make the trust valid
There was 3 views of interpretation in the case: Sachs LJ, Megaw LJ and Stamp LJ
1) Sachs - wide interpretation of dependants and relatives Issues concerned evidential and conceptual certainty Burden was for the individual to prove they were a member of the class of Bs May make a trust more diff
2) stamp = strict !! Must be said for every beneficiary whether they are or aren't in the class of bs but surely this returns to the fixed list test if every beneficiary must prove this?
3) Megaw LJ Test requires evidential and conceptual certainty and a wider feel for the class of Bs
What did wilberforce in Mcphail v Doulton 1972 define administratively unworkable as?
Where the class of Bs is so wide that it cannot possibly form anything like a class of people for example, all of the residents of greater London (R v DA ex P West Yorkshire MCC 1986)
- re hays settlement trust = “anyone in the world” was too administratively unworkable but this could count for a mere power or appointment
Things affecting the certainty of objects
- evidential certainty
- conceptual certainty
- administrative Unworkability
- ascertain ability
Evidential certainty
Identification of people within the class
Conceptual (semantic) certainty
Identification of the class of beneficiaries
