The 3 certainties Flashcards
Paul v Constance
Account in husband’s name held in trust for both husband and partner. “It’s as much yours as mine”
“There can be no trust, over the exercise of which this Court will not assume control.”
Morice v Bishop of Durham
Exception to the principle in Morice v Bishop of Durham
Charities
What does the concept of administrative unworkability apply to
Certainty of objects for TRUSTS
What does the concept of capriciousness apply to
Certainty of objects for POWERS
What are the three certainties and which case listed them
- Words (intention)
- Subject matter
- Objects
Lord langdale, Knight v Knight
Use of the word trust does not neccessarily create a trust
Tito v Waddell (Ocean Island)
Express trust can be created by words and actions
Paul v Constance
Two examples of the courts having regard to the language of the whole instrument to see whether there was intent to create a trust (precatory words cases)
Adams and kensington Vestry: “full confidence” = no trust
Comisky: mandatory wording elsewhere implied trust intended
Example of a sham intetion case where settlor had no real intention to create a trust
Midland Bank v Wyatt
What is the result where a trust fails for lack of certainty of intention
Either it takes effect as a gift or not at all
Existing property must be clearly identifiable: “bulk of my residuary estate”
Palmer v Simmonds. Insufficiently clear
Existing property must be clearly identifiable: 2 houses to daughters, 1 could choose which she wanted, the other got what was left. The 1st daughter died before the testator, so there was no certainty as to the other daughter’s entitlement
Boyce v Boyce
An example of vague wording re subject matter being acceptable
“Reasonable income” created a valid trust in Re Golay’s
Case where 50 of 200 gold bars was invalid for uncertainty of subject matter
Goldcorp Exchange
TANGIBLE SUBJECT MATTER, MINOR DIFFERENCES
Case where 50 of 950 shares was certain subject matter
Hunter v Moss
INTANGIBLE
What is the rule about certainty of subject matter for future property
It must be capable of being ascertained, not mere expectancy. So eg royalties of unwritten songs was uncertain: PRS v Theatre of varieties
Which case says that the beneficiaries of a trust must be capable of being ascertained?
Morice v Bishop of Durham
Which case says that every non-charitable trust must have a human beneficiary
Morice v Bishop of Durham
Which judge explained the difference between evidential and conceptual uncertainty and in which case
Denning, Re Tuck
Example of conceptual uncertainty
Jewish: Clayton v Ramsden
Conceptual uncertainty rendered certain by an arbiter
The Chief Rabbi in Re Tuck
OBITER
In what order should you address a certainties problem?
- Rule in Knight v Knight
- Intention (words v actions/ sham intention)
- Subject matter (existing, quantities, future)
- Objects (Fixed, discretionary, power, charity)
- Hurdles
- Result of failure
“Full confidence” = No trust
Adams and Kensington Vestry
Full confidence + mandatory wording = trust
Comiskey
Definition of sham intention
Snook: acts done or documents executed are intended to give the appearance of creating legal rights which are different to what the parties actually intend to create
Tests for certainty of objects for fixed; discretionary; powers; conditional gifts; charities and purposes
Broadway cottages
McPhail v Doulton
Gulbenkian
Re Barlow
Statute
Re Astors
How can a really wide power be rendered certain
Re Manisty - with a certain, excluded class
3 possible bars to validity
Administrative unworkability
Capriciousness
Excessive use of a fiduciary power
Explain administrative unworkability
Nature of the trust is such that it cannot be reasonably carried out
West Yorks CC
Applies to TRUSTS
Explain capriciousness
Negatives sensible consideration by the T of the exercise of their power
Re Manisty
Applies to POWERS
What are the 3 duties of the holder of a fiduciary power
- Consider whether to exercise power
- survey the potential beneficiaries and weigh up their merits
- Don’t go beyond what you’re permitted to do
Re Hay’s
