Express Trusts - Effect Of Failure Of Certainties

Question 1

What are the two tensions in this area?

Answer 1

Upholding the actual intention of the settlor
 That intention being impossible or impracticable to carry
Out (will do more harm than good to try and validate it so law invalidates it)

Question 2

What are the 2 general laws of trusts relevant here?

Answer 2

Trustee cannot benefit from a trust

 Non-trustee can benefit from a gift

Question 3

What is the leading case for resulting trusts?

Answer 3

Dyer v Dyer (1788)

Question 4

What does dyer say about resulting trusts?

Answer 4

Equitable ownership ‘results to the man who advances
the purchase money’.
I.e. If there is no obligation or instruction to
deal with the property, ownership ‘results’
back to who provided the value
N.B. More dog Latin:
 Resultare = spring back

Question 5

Example - What happens if someone buys property in someone else’s name?

Answer 5

• Would work the legal owner would hold it on trust - trust is presumed
• Because there’s no instructions of what to do with it, the settlor becomes the beneficiary
• Equitable ownership held on trust for the settlor or the person who pays

Question 6

Failure of intention - what happens if settlor fails to self-declare the trust?

Answer 6

she remains the owner of the property: no effective legal change

Question 7

Failure of intention - what if
there has been a transfer of property to the
would-be trustee?

Answer 7

there is no trust but an
absolute transfer; a gift.

- results in gift to trustee who isn't actually the trustee
- Means ownership remains with transferal settlor, sounds like its going to the trustee but its not - property can be transferred as gift but if not nothing has happened

Question 8

What happens with failure of subject matter?

Answer 8

 If the property cannot be ascertained,
similarly there is no trust and ownership
remains with the transferee or settlor.
 If the beneficiary’s shares cannot be
identified, the transferred property is held on
resulting trust for the settlor.

Question 9

Failure of objects with fixed or discretionary trust?

Answer 9

If a fixed or discretionary trust fails because
the relevant certainty of objects test fails, the
transferred property is again held on
resulting trust.

Question 10

Failure of objects with fiduciary power?

Answer 10

the transferred property is held for
the recipient of the gift over absolutely.

- If we have a certainty of intention and subject, but not of objects, it isn't held on trust as there are further options like the gift over, so by pass the intended beneficiary and the property goes to the intended gift over recipient

Question 11

If it fails, why does it matter that trustees cant benefit from a trust?

Answer 11

they lack a certainty and the trust fails, they will remain a trustee holding the transferred property on resulting trusts for the settlor - so it goes back to where it cam from