Certainty of Intention Flashcards
What are the three certainties?
Certainty of subject matter
Certainty of object
Certainty of intentions
Why are the three certainties important?
The three certainties are need to for an express trust to be valid.
What is the authority case for the three certainties?
Knight v knight [1840]
Knight v Knight (1840)
Land should pass down through the male heirs. The land was left to his brother but the settlers will testamony read as:
“I trust to the liberality of my successors….to their justice in continuing the estate in the male succession, according to the will of the founder of the family, my above-named grandfather, Richard Knight”
No trust was created in these words since there was no clear obligation.
When considering the wording of the will, what maxim must be followed?
Maxim - equity looks to the substance and not the form.
Meaning, where is the property being given Intended to go. The substance not the exact wording.
Re Adams and Kensington Vestry [1884]
Settlor leave land to wife; will reads;
“In full confidence that she will do what is right”
No trust was founds since their we no legal obligation so past land onto children only a moral one.
What is a precatory trust?
A trust where the wording is “begging, asking or requesting” the recipients to look after the property for a third party.
Lambe v Eames [1970]
Settlers left his land to his widow. Will reads; “to be at her disposal in any way she may think best”
Held, the settlers left the land as an absolute gift. No trust was created.
What case is the precedent for an absolute gift ?
Lambe and Eames [1970] but remember anything the recipient does with the gift after can be a valid trust.
Re Digges [1888]
The settler used the word [desire] this meant there was no binding obligation so there was no trust
“In full confidence”. What case is the precedent for these words?
Comiskey v bowring-Hanbury [1905] “in full confidence” must be read with the context as the rest of the will, the settlers set an obligation to pass the land onto third parties following the recipients death.
Re Kayford Ltd [1975]
A furniture seller goes into liquidation. Accountant advised to set up a separate account but uses dormant account. Creditors said it still belong to the business however, Megarry J held; trust had been created. Maxim in substance was there
Actions to make trust Instead of words
What is certainty of intention is missing ?
Then a trust cannot be satisfied and the recipient obtains the property as a absolute gift.
