Express Trusts

Question 1

Rochefoucald v Boustard

Answer 1

Formalities of express trusts

Oral agreement
Land has been on trust, valid trust was created even though formalities had been ignored

Equity does not follow the law slavishly

Question 2

Chambers v Fahy

Answer 2

Three certainties

1. words of intention
2. certainty of subject matter
3. certainty of objects

Question 3

Thexton v Thexton

Answer 3

Certainties of words of intention

The courts will examine the substance and intention of the words in light of surrounding circumstances

Question 4

Re Adams and Kensington Vestry

Answer 4

Certainties of words of intention

Precatory words - “in fullest confidence of what is right” used
Provided a moral obligation but no binding legal obligation

Question 5

Re Coulson

Answer 5

Certainties of words of intention

Testatrix left farm in her will
It was her wish that whoever obtained it as they needed it
Too vague language - no binding obligation

Question 6

Comiskey v Bowring-Hunbury

Answer 6

Certainties of words of intention

Document will be read as a whole
The use of precatory words will not be fatal
The use of “in full confidence” did not negate the imperative language in the rest of the document
If there is no certainty of intention created in a trust, an absolute gift is created in the will.

Question 7

Boyce v Boyce

Answer 7

Certainty of subject matter

One of the daughters died who was to have made the selection before the selection was made
Trust failed for certainty - no certainty as to who would take over

Question 8

Palmer v Simmons

Answer 8

Certainty of subject matter

“The bulk of my residuary estate” - no certainty

Question 9

Re Golays Will Trust

Answer 9

Certainty of subject matter

“Receive a reasonable income”
No certainty as to what reasonable income is

Question 10

Hunter v Moss

Answer 10

Certaintyy of subject matter

50 shares – no specification of which shares – they were all the same so it did not matter

Question 11

IRC v Broadway Cottages Trust

Answer 11

Certainty of objects/beneficiaries

The trust just be one that the court can control and execute

Question 12

Re Endacott [1960] Ch 232, 246:

Answer 12

The Complete List Test

“[T]he trust must have ascertained or ascertainable beneficiaries.”

Trustees have no discretion when there is a fixed trust and therefore do not determine who the beneficiaries are or what share/ interest they are to have (as opposed to a discretionary trust).

Question 13

IRC v Broadway Cottages Trust:

Answer 13

Here it was found that, it must be possible to draw up a complete list of the members of that class - the class must have sufficient conceptual clarity and certainty.

Question 14

Re Gulbenkian’s Settlements [1970] AC 508

Answer 14

The Complete List Test

The Gulbenkian test demands conceptual certainty and requires that it can be said with certainty whether any potential object is a member of the class.

Most stringent test in this area

Question 15

McPhail v Doulton [1971] AC 424

Answer 15

Discretionary Trusts - ‘Individual Ascertainability’ Test

Less stringent test: “[A discretionary] trust is valid if it can be said with certainty that any given individual is or is not a member of the class.”
Settlor set up trusts for his employees and their relatives and dependents.
Trustee had absolute discretion to apply the trust fund. Court will exercise this power if they fail to do so.
Although it was not possible to list all of the possible beneficiaries, there was no essential difficulty in deciding whether any particular person could benefit.

Question 16

Re Parker [1966] IR 308, 318

Answer 16

Discretionary Trusts - ‘Individual Ascertainability’ Test
Irelands approach!
This was however considered to be a question of whether or not it was utterly impossible to identify the class for the trust.

Question 17

Re Baden’s Deed Trusts (No 2) [1973] Ch 9, 20

Answer 17

Evidential Clarity

In this case, the words ‘relatives’ and ‘dependants’ were deemed to be sufficiently conceptually certain.

Question 18

Gold v Hill [1999] 1 FLR 54

Answer 18

Evidential Clarity

Trust for “Carol and the kids”– the deceased had children from preceding relationships – this established a general intention with sufficient clarity.

Question 19

R v District Auditor ex parte West Yorkshire Metropolitan County Council (1986) 26 RVR 24.

Answer 19

Administrative Unworkability And capriciousness

‘[A]ny or all or some of the inhabitants of West Yorkshire’ - found to be administratively unworkable.

Question 20

Milroy v Lord (1862) 4 De GF & J 1264, 274.

Answer 20

Perfection of Gifts

where the intervention of a third party is necessary to complete the transfer, the equitable interest transfers once the settlor has done everything in their power to make the transfer effective.

Question 21

Re Rose [1952] Ch 499

Answer 21

Transfer of property to trustees

done died before transfer registered

Question 22

Re Fry [1946] Ch 312.

Answer 22

Transfer of property to trustees

A donor tried to transfer shares but this could not be done without the consent of the Treasury. He had not done everything in his power to effect the transfer.

Question 23

Pennington v Waine [2002] 1 WLR 2075.

Answer 23

Transfer of property to trustees

Trust became effective once the share transfer form was signed by the donor, regardless of the lack of a counter-signature.

Question 24

Jones v Lock (1865) Ch App 25

Answer 24

Declaration

Intention to declare a trust must be demonstrated - strict approach.

Cheque given to son, not endorsed, died - no clear intention

Question 25

Paul v Constance [1977] 1 WLR 527

Answer 25

Declaration

‘the money is as much yours as it is mine’.
Held: this was sufficient to be deemed a declaration of trust.

Question 26

Strong v Bird (1874) LR 18 Eq 315.

Answer 26

Rule– Where there is an immediate gift and the settlor subsequently vests the legal title in the trustee or beneficiary, the trust becomes enforceable.

If someone says they want to give a gift to someone and then later names that person as the one who will handle their affairs after they die, if they don’t change their mind, the person they named as the executor gets to keep the gift. This means that just saying you want to give a gift to someone and then naming them as the executor makes the gift final.

Question 27

Re Wilson [1933] IR 729

Answer 27

Exceptions: Strong v Bird

A stockbroker agreed to bequeath certain properties to his son (no immediate gift), who was then named executor of the will.
The agreement was voluntary and incomplete and could not be enforced.
Court held that the rule in Strong v Bird applied to perfect a gift where an immediate gift of certain securities was concerned.
This was not an immediate gift; merely a promise of future tresamentary benfaction.

Question 28

Re Stewart [1908] 2 Ch 251, 254-55

Answer 28

Exceptions: Strong v Bird

There must be a continuing intention to make the gift perfect until the date of the donor’s death. If the donor changes their mind prior to death, the rule does not apply.

Question 29

Re Wale [1956] 1 WLR 1346.

Answer 29

Exceptions: Strong v Bird

The settlor continued to treat the property as if it were their own - no application of the rule.

Question 30

Cain v Moon [1896] 2 QB 283

Answer 30

Exceptions: Donatio Mortis Causa

“[T]he gift or donation must have been made in contemplation, though not necessarily in expectation, of death.”

Question 31

Agnew v Belfast Banking Co

Answer 31

Donatio Mortis Cause – “impending death”

The gift will be perfected on the donors death

Question 32

Wilkes v Allington [1931] 2 Ch 104

Answer 32

Exceptions: Donatio Mortis Causa

The cause of death is immaterial

Question 33

Sean v Headley [1991] Ch 425

Answer 33

Exceptions: Donatio Mortis Causa

Held: no reason in principle why transfers of bonds etc, which can form the basis for a donatio, could not be extended to deeds for land.
One reason might be the requirement for deeds to be in writing (S.5 Irish Statute of Frauds). However, this is subject to an exceptions for trusts.
It would seem property may form the subject matter of a donatio mortis causa.