Certainty of Intention Flashcards
Re Kayford [1975] 1 WLR 279
Commercial case involving separate bank account customers.
Held: Despite the word trust not being used explicitly, having looked at the surrounding circumstances it was held that they disclosed something a lawyer would consider to be an intention to create a trust.
Knight v Knight (1840) 148
Established the three certainties,
Lambe v Eames (1870-71) LR 6 Ch App 597
Facts: Man gave estate to his wife ‘to be at her disposal in any way she thinks best for the benefit for herself and her family’.
Held: This was an outright gift, not trust. John made no particular obligation upon his wife to deal with the property in a particular way.
Precatory words will not suffice to indicate certainty of intention.
Re Steele’s WT [1948] Ch 603
Precatory words “to her wish” generally not held to be intention, however having looked at the surrounding circumstances it was held to be a trust. Same words had been used in Shelly v Shelly when courts were more inclined to find a trust.
Re Adams and Kensington Vestry (1884) 27 Ch D 394
Leading case on precatory words.
Left property to his wife “in full confidence that she will do what is right as to the disposal thereof between my children either in her lifetime or by will after her decease”.
Held: This was an outright gift to the wife as it was reasonable to assumer a mother could be relied upon to care for her children. ‘Full confidence’ was the key phrase.
Comiskey v Bowring Hanbury [1905] AC 84
Precatory words but different circumstances.
Held that the property was held on trust or the wife in her lifetime and then the remainder to the husbands nieces. Lord Lindley dissented, he had a very literal interpretation. Difference from Re Adams was that it related to the nieces not wife’s children.
Re Diggles (1888) 39 Ch D 253
‘Desire’ was not a binding obligation, simply a moral one.
Midland Bank v Wyatt [1995] 1 FLR 696
He who seeks equity must do equity. The intention to create a trust must be genuine, rather than entered into as a sham, to deceive or to be defrauded.
If the trustee and beneficiaries do not know about it, this indicates against a trust.
Pearson v Lehman Brothers Finance SA [2010] EWHC 2914
The settlor must show that s/he intended to create a trust. The relevant intention is objective not subjective – it is irrelevant whether the settlor appreciated he was creating a trust
Twinsectra v Yardley [2002] UKHL 12
Lord Millet - A settlor must, of course, possess the necessary intention to create a trust, but his subjective intentions are irrelevant. If he enters into arrangements which have the effect of creating a trust, it is not necessary that he should appreciate that they do so; it is sufficient
that he intends to enter into them.
