Express Trusts I Flashcards
What are the three certainties needed for creation of an express trust?
-Certainty of Intention
-Certainty of subject matter
-Certainty of objects
(Knight v Knight)
What case can be used to demonstrate a certainty of intention?
Paul v Constance, husband saying ‘the money is as much yours as mine’ showed intention to create a trust
What is the default rule with certainty of subject matter?
Chattels must be separated from a bulk for the subject matter to be certain
Re London Wine Co
What is the exception to the rule of subject matter?
Hunter v Moss, shares did not have to be separated
Distinguishment made in Re Harvard Securities that shares, debts and funds should be treated differently
What is the difference between a fixed trust and a discretionary trust?
Under a discretionary trust the trustee can make decisions as to who the beneficiaries are, this has to be certain with a fixed trust
What is the difference between a power and a discretionary trust?
A power need not be exercised if the trustee decides, however if the power is fiduciary then they must consider exercising it
Re Hay, a power cannot be void for administrative unworkability
What is the rule for certainty of objects in a fixed trust?
Re Gulbenkian, certain if a complete list of beneficiaries could be drawn up, ascertainability does not matter
What is the exception of validity of objects within a fixed trust?
Where there is an individual gift subject to a condition precedent
Re Barlow’s Will Trust, which confirmed Re Allen,
‘the gift is valid if it is possible to say of one or more persons that he or they undoubtedly qualify’
What is the rule on certainty of objects for discretionary trusts?
The ‘is or is not’ test, must be said with certainty in the abstract whether someone can said to be part of the class (also applies to powers)
McPhailv Doulton or Re Baden No1
What are the different types of uncertainty that a trust can be rendered void for?
Conceptual Certainty: if problems with the language are not solved the gift is not valid
Ascertainability: Uncertainty of existence or whereabouts of the members of a class can be resolved by the courts
Administrative Workability: The definition of beneficiaries must not be so wide as not to form anything like a class so that the trust is administratively unworkable or cannot be executed. A trust for all the residents of Greater London is void. However, ‘relatives’ of a living person would not be too wide
Is a trust for ‘relatives’ certain enough?
Yes, Re Baden No2
Megaw: Said it matters if a substantial number could fall in the trust, not if every individual could, otherwise this is just like the previous rejected test
Stamp: Depends on whether any individual is or is not a member of the class (narrowest definition of relatives being next of kin)
Sachs: Once the class of person to be benefited is conceptually certain it then becomes a question of fact to be determined on evidence whether any postulant has on inquiry been proved to be within it
What is a non-charitable purpose trust and why is this not valid?
A trust that does not exist for a person and therefore does not have any beneficiaries, these are held to not be valid due to the beneficiary principle
Morice v Bishop of Durham
What is an exception to the rule on non-charitable purpose trusts?
Denley Trusts
A private purpose trust will be valid where directly or indirectly benefitted people cane be said to have a direct and tangible interest as to have the locus standi to enforce a trust
(Decision is highly unpopular)
