Express Private Trusts Flashcards
What do express private trusts rely on?
They rely on what the settlor/testator intended - thus, it must be tolerably clear what he/she wanted to achieve
What are the three certainties that an express private trust must meet to be valid?
Certainty of intention, subject matter and object
What did Moffat say about certainty of intention?
“The hallmark of an express trust is the existence of an intention to create a binding trust obligation”
What implies the intention to create a trust?
Both words and wider circumstances
What must the words/circumstances show?
The settlor’s intention that the trustee is to have an enforceable obligation to carry out their wishes or instructions
Does the word “trust” have to be used?
No, the settlor doesn’t even have to know what a trust is
Paul v Constance 1977
F: Man in a relationship had a bank account in his own name, used the words “money is as much yours as mine”
I: Did he hold the money for himself and his partner?
H: Yes, the words sufficient
Jones v Lock 1865
F: Father had a cheque that he said was for his baby, then died before he had a chance to cash it
I: Was that enough to create a trust?
H: No, loose conversations not sufficient
Lambe v Eames 1871
Signified the change of attitude of courts re precatory words, now reluctant to impose obligations of trusteeship where words not clear
Re Adams and the Kensington Vestry 1884
“In full confidence” not enough
Re Diggles 1888
“It is my desire that” not enough
Re Johnson 1939
“I request that” insufficient to create a trust
Re Steele’s WT 1948
F: Trust written specifically using old precedent, even though words used not sufficient
I: Was there a trust?
H: Yes, there was, as in the old case trust upheld
What happens where there is no certainty of intention?
Trust fails, and the person who was supposed to be a trustee takes absolutely if transferred, if not transferred owner remains absolute owner
What does certainty of subject matter mean?
That if the property that should be subjected to the trust cannot be identified, there cannot be a trust
Lack of certainty may be present in relation to what?
The property itself and the respective entitlement of different beneficiaries
Palmer v Simmonds 1854
“The bulk of my said residuary estate” not certain enough
Sprange v Barnard 1789
“The remaining part of what is left that he does not want” not certain enough
Boyce v Boyce 1849
“All my other houses” remaining after M had chosen one, where M predeceased the testator without making a choice not certain enough
Re Golay’s WT 1965
“Reasonable income” held to be able to be determined objectively by reference to B’s standard of living
Re London Wine 1986
F: Wine sold to customers held in warehouses with no allocation to specific customers, co went into receivership
I: Was wine held on trust for customers?
H: No, as bottles for each customer had not been segregated from the bulk
Re Goldcorp 1995
F: Gold bullion held for customers by a co which became insolvent before delivery
I: Was bullion held on trust for customers?
H: Only those customers where bullion had been segregated from bulk could establish trust, no trust where no segregation
Hunter v Moss 1994
F: S had 950 shares in company, made declaration of trust over 5% of shares
I: Was there a trust if not certain which shares?
H: Yes, as all belonged to same class
What happens if purported declaration of trust or transfer on trust, but the description is uncertain?
Settlor retains property
