Requirements of an Express Trust

Question 0

Broadway Cottages (uncertainty)

Answer 0

There comes a point when the trust cannot be upheld because it is not clear what the trustees are to do

Question 1

McPhail v Dalton (general on trusts)

Answer 1

A trust will be upheld if it can (Wilberforce) ‘practicable certainty’

Question 2

Edwards v Carter

Answer 2

Necessary age to create a trust

Question 3

RE Beaney

Answer 3

A trust made by someone who is mentally incapacitated is void - however, the court may do it on behalf of someone who is mentally incapacitated

Question 4

Lenham Bros

Answer 4

Intention to create a trust not a gift

Question 5

Kinloch

Answer 5

The word ‘trust’ does need to be used to make a trust - Even if the word ‘trust’ is used it doesn’t necessarily mean that there is one

Question 6

Re Diggles

Answer 6

Precatory words, e.g. wishes, desires, will show a lack of intent to create a trust in substance

Question 7

Lenham Bros

Answer 7

Whether a trust has been created is an objective assessment, i.e. not the relationship between the parties but rather what the reasonable person would ascertain by what has been said

Question 8

Re Adams and the Kensington Vestry

Answer 8

Not too much emphasis should be placed on the specific meaning of words used and circumstances can be taken into account - the whole of the document should be taken into account

Question 9

Re Steele’s Will Trust

Answer 9

Strong evidence that a trust was intended can be construed by using a lawyer

Question 10

Re Gulbenkian, Gold v Hill (interpretation)

Answer 10

It is for the court to make sense of what was intended by the expression of the words - they should intepret

Question 11

Jones v Lock

Answer 11

Self-declaration of a trust (baby gift or trust? Baby couldn’t sign cheque and no trust was intended, cheque remained with father’s estate)

Question 12

Paul v Constance, Rowe v Prance

Answer 12

Inference of a self-declaration of trust by saying things like ‘ours’ – also trusts which can be created orally

Question 13

Clowes (No.2)

Answer 13

Courts are reluctant to find trusts in commercial context, here it was found because of what had been stated in a brochure

Question 14

Richards v Delbridge (equity will not assist a volunteer)

Answer 14

If property is intended to be a gift but legal title is not properly transferred then it cannot be a trust as a gift is the opposite; no obligation

Question 15

Midland Bank

Answer 15

A trust may be a sham even without any dishonest or fraudulent conduct
- Sham trusts are void and unenforceable

Question 16

Dairywise Farms

Answer 16

Trusts can be declared over all types of property

Question 17

Sprange (subject matter)

Answer 17

The subject matter has to be described with sufficient clarity - things like ‘the bulk’ ‘the remaining part of what is left’ ‘such parts she has not sold’ - are not sufficient

Question 18

Re Last

Answer 18

‘Anything that is left’ is sufficiently clear

Question 19

Re Golay’s WT (reasonable)

Answer 19

A ‘reasonable income’ was sufficiently clear - especially with evidence of standard of living

Question 20

Westdeutsche Landesbank

Answer 20

The subject matter must also be identifiable

Question 21

Hunter v Moss

Answer 21

Certain things which seem unidentifiable can be - here it was shares

Question 22

Re Clifford (identifying subject matter)

Answer 22

on death, executors of a will can identify the subject matter e.g. 5% of shares because they have title and folllow the will’s obligations

Question 23

Re London Wine (cf. Hayton), Re Goldcorp

Answer 23

Chattels in bulk - because the bottles had not been separated this was not sufficiently identifiable - they had not been separated and legal title had not passed - wine may seem the same but there may differences like in Hayton - they were corked

Question 24

Re Harvard Securities

Answer 24

Intangible property (like shares) - more benevolent approach to identifying than chattels

Question 25

Goode (person not case)

Answer 25

Numbering shares is not sufficient to make them different - analysis is different as shares are a fraction of a whole asset, therefore, a trust of shares sees the B merely become a co-owner of the single asset

Question 26

MacJordan Construction

Answer 26

Money coming from a particular fund with intent - it must come from that fund

Question 27

Burrough v Philcox

Answer 27

Even if the subject matter is identifiable, but the portion to each B unclear, then not de facto void - court can employ the maxim ‘equality is equity’ and divide equally

Question 28

Lenham Bros

Answer 28

Just because a trust is uncertain at present, not automatically void if may not be in the future

Question 29

Ottoway v Norman

Answer 29

‘Floating’ trust crystallising on death - this was secret trust but could be applied elsewhere

Question 30

Broadway Cottages

Answer 30

Object must be sufficiently certain

Question 31

Broadway Cottages

Answer 31

‘Complete list test’ for certainty of object for FIXED TRUSTS

Question 32

Re Gulbenkian (Lord Upjohn)

Answer 32

It does not matter if the location of certain Bs cannot be ascertained, those who can be found will be paid and the remainder paid to court

Question 33

Blathwayt v Lord Cawley

Answer 33

Stricter test of certainty applied to conditions subsequent in fixed trust - here it was held to be a valid condition and shows the change in courts’ attitude

Question 34

Re Tepper’s Will Trusts

Answer 34

This was a condition subsequent ‘marrying outside the Jewish faith’ and Scott J applied an objective test

Question 35

Re Allen

Answer 35

Just one person needs to satisfy the condition precedent

Question 36

Re Tuck’s Settlement Trusts

Answer 36

Denning explained how conceptual uncertainty will not render a condition precedent void but would a condition subsequent

Question 37

Sprange v Barnard (beneficiaries)

Answer 37

A discretionary trust will fail if uncertain as to potential beneficiaries

Question 38

Re Leek

Red Baden’s No.2

Answer 38

‘a moral claim’ may be upheld for a mere power but not a ‘trust power’

Held to be conceptually uncertain

Question 39

Broadway Cottages (discretionary trusts)

Answer 39

Initially there was no distinction drawn with fixed trusts - was very difficult as usually many more objects than fixed trusts so complete list test was difficult

Question 40

McPhail v Doulton (discretionary trusts)

Answer 40

Rejected complete list test for discretionary trusts - also questioned it generally as may not comply with testator’s intention and also distributed very thinly so worthless

Question 41

Warburton v Warburton

Answer 41

When then maxim ‘equality is equity’ has NOT been used as not seen to be beneficial

Question 42

McPhail, Re Gestetner Settlement

Answer 42

‘Given postulant test’ - meant that finding some of the class for discretionary trust, but not all, sufficed for disc. trusts

Question 43

Re Baden No. 2 (object)

Answer 43

There will not be certainty of object if the definition of the class is not sufficiently clear - ‘relatives’ and ‘dependent’ are conceptually certain

Question 44

R v District Auditor, ex p West Yorkshire MCC

Answer 44

‘Inhabitant of W. Yorkshire’ and ‘Jewish blood’ were sufficiently certain, would seem that ‘my friends’ is not although dicta in Re BT is useful although concerns precedent condition trusts - still, strong argument that it is sufficiently certain

Question 45

Re Baden No.2 (discretionary)

Answer 45

Evidential certainty - Sachs LJ is to be preferred as most consistent with Wilberforce in McPhail - proof of being in the class means it will be valid but failure to do so will see it fail

Question 46

McPhail, R v Auditor, ex p West Yorkshire MCC

Answer 46

A class that is too wide is no longer a class - discretionary - Y MCC also concerns discretionary trust capriciousness - will be void if ‘no sensible intent to establishing a trust’

Question 47

Re Baden No. 2 (admin. unworkability)

Answer 47

It is the size of the class that makes it administratively unworkable but a class of hundreds or thousands is not inherently defective (n.2)

Question 48

Morice v Bishop of Durham (v. large class)

Answer 48

A court cannot execute a trust with a very large class - questionable as to why

Question 49

Harpum (person), McKay (person)

Answer 49

Administrative workability (discretionary trusts) might work against the policy of excessive delegation - MCK however, this has been rejected as it runs contrary to respecting the settlor’s intention so should look instead to evidential certainty, i.e. an object proving themselves

Question 50

Re Manisty’s Settlement

Answer 50

The former for ‘residents of G. Lon’ was capricious but the latter for ‘inhabitants of Yorkshire’ was not - size and also relationship as latter was council - NB, however, the former was a fiduciary case and a discretionary trust has never been void for capriciousness

Question 51

Re Gulbenkian’s Settlements (fiduciary powers)

Answer 51

Certainty of object for fiduciary powers - it is sufficient that just one person fell into that class (same as conditions precedent)

Question 52

Blausten v IRC - Re Hay’s Settlement

Answer 52

Buckley LJ suggested that a fiduciary power could be void for administrative unworkability - controversial - Megarry seemed to confine in Hay’s, but NB Gardner in Mettoy Pensions Trustees which appears to allow

Question 53

Re Hay’s, Re Manisty’s (capriciousness, fiduciary powers)

Answer 53

A fiduciary power will not be capricious because of the size of the class, so a power for the whole world is fine as there is no identifiable class for it to be capricious - but one for people who have read Lord of the Rings maybe as may be accidental or irrelevant purpose -

Question 54

Re Leek, Re Wright’s Will Trusts (severing)

Answer 54

Cannot severe a discretionary trust for two classes where uncertain, although can do for charitable PT, however, no logical reason why not - instead of frustrating intention entirely

Question 55

Schmidt v Rosewood, Blausten v IRC (confirming), Re Hay’s (Megarry)

Intermediate power - wide definition of B

Answer 55

In S v R they accepted wide definition of Bs to give widest discretion, however, unworkability, however, there is an ‘intermediate power’(B) given where there really should be a fiduciary power, so they can appoint to anyone in the world except a small class of people - must be able to specify specific objects within class, however - this was rejected by M who said the only difference was that the int. power holder had to exercise rather than consider exercising

Question 56

Morice v Bishop of Durham (B princp)

Answer 56

A court needs identifiable people in whose favour they can decree performance - a trust for purposes is VOID because there are no identifiable beneficiaries (this was not a charitable trust) however, there are exceptions

Question 57

Re Denley’s

Answer 57

Some trusts appear prima facie to be for purposes but have identifiable persons who indirectly benefit

Question 58

Perpetuities and Accumulations Act,

Answer 58

Perpetuity reformed CL rule of a life plus 21 years with 125 years and it starts when the trust instrument or will takes effect, or, with power of appointment, when that takes effect - after this time interest in property is void - there is no perpetuity rule for charitable purpose trusts as would contravene public benefit, but non-charitable are under CL rule still

Question 59

Boyce v Boyce

Answer 59

If a trust’s subject matter is identifiable but the portion to each B is unclear (here, which house?) then the trust will be void for uncertainty