Certainty of Intention Flashcards
basic rule of certainty of intention
to create a trust, MUST do so clearly:
- Duty imposing works e.g. give property to someone + say they must use in particular way
- *Doing this w/o imposing a duty = a Gift, Not Trust
- Doesn’t matter if word “trust” not used if this is what you’re actually doing, Equity looks at substance rather than firm
- Must be Legally compelled to hold property for someone else
- Ambiguous works = matter for courts to decipher intention
what’s a testamentary trust?
trust in wills/after death, written doc for Testator to look at for the intention
Re Adams and the Kensington Vestry [1884]
- Testator left property to someone “in full confidence they’ll do what’s right as to disposal thereof”
*Held = NOT a Trust - Moral rather than legal obligation
Lamb v Eames [1871]
- Testator left assets to widow “to be at her disposal in any way she may think best, for the benefit of herself and her family”
- She gave part of estate she received to illegitimate grandson
*CoA Held = were just words of desire from Testator, NOT a Trust, Widow could do what she liked
Re Hamilton [1895]
“I wish them to bequeath…”= not a trust
Re Johnson [1939]
“I request … that on her death leave property to my four sisters” = not a trust
Comiskey v Bowring-Hanbury [1905]
*must construe will as a whole
*Court held = you MUST Construe Will as a WHOLE
- 2nd sentence had CLEAR direction
Held = Testator Intended to create a Trust
Re Steele’s WT [1948]
- sounds like a Request = “wish”
- But these words were deliberately used to create a Trust via case Shelley v Shelley
- If you deliberately use old words that used to create trusts in the past, today they could be seen as intention to create a trust
- i.e. –> Precatory words copied from precedent CAN create a Trust
High Court held = here it was an unusual case, where someone was using Precedent to Create a Trust
what’s the uncertainty regarding Precatory Words?
extent to which will be followed today = Unclear
what’s an Inter Vivos Trust?
- Trusts made during your lifetime
- spoken words or written
Paul v Constance [1975] –> can make a Trust easily w/o Written Doc
- Cohabiting couple
- C pays compensation into account after he’s injured
- He makes freq. representations to partner: “The money is as much yours as mine”
- Joint bingo winnings paid in
- 1 substantial Withdrawal shared between P & C jointly for Christmas
- Man died + estranged wife became Administrator of his Estate
- GF sues Wife, saying money in joint account was held on Trust for BOTH Mr C + Ms P
*Court Agreed with Ms P/gf
HELD = C held money on trust and P entitled to half on his death
- *Express Trusts can be make Informally w/o Written document (i.e. with words)
why is making a Trust easily w/o Written Doc problematic?
- Unclear from facts when exact date Trust was made/when
- Important to know when duties arose so people can change their minds BEFORE Trusts are created OR when you can bring a claim if someone breaches a Trust
Rowe v Prance [1999]
- Illicit affair for 14 years, Mr P was married + promised to leave his wife but didn’t
- P buys yacht to share with her (mistress)
- Bought all with His Money + Registered in his name
- P gave false reason why it could not be jointly registered in both of their names
- But Ms R organises negotiations + gives up her accommodation
- Yacht = referred to as “OURS” by P
- They eventually separate
- Ms R said there was Express Trust
*Court Agreed with Ms R
- Sufficient evidence Mr P was holding it on Trust for Both of them
what are the rules regarding Intention + Mixing Trust Property?
- MUST be Segregated
- No instruction to Segregate their property from recipient’s = NO TRUST –> Recipient is entitled to mix property + hand back equivalent property rather than the exact one
Commrs of Customs & Excise v Richmond Theatre [1995] –> Segregation + Intention
- Contract stated until performance took place at Theatre, money the company handed over would be held on Trust for them
- But it also said Theatre wasn’t accountable for any interest or otherwise in respect of ticket money
- i.e. –> reserved right to do what it wanted with the money
- But it also said Theatre wasn’t accountable for any interest or otherwise in respect of ticket money
*Court Held = Despite declaration of Trust, was NO Trust as there was No Requirement to Segregate
Re Lewis’s of Leicester [1995]
- Department store receives money in the till mixed up together
- Then after, it’s worked out what is owed to each concession stall
- Sounds like it’s not a trust, as it’s Not Segregated
- Money went into special account rather than general account
- Although there was mixing of the money in that account, was not mixing with store’s general assets in a meaningful sense
- Then after, it’s worked out what is owed to each concession stall
*Held = a Trust, as everything in that account was held separately to main account money for general expenses etc.
