The 3 certainties

Question 1

What are the 3 certainties?

Answer 1

Intention, subject matter and objects

Question 2

What is the authority for the 3 certainties?

Answer 2

Knight v Knight (1840)

Question 3

What is the rationale behind the 3 certainties?

Answer 3

Parties must know what they are signing up to, and allows court to enforce trust if necessary

Question 4

What is intention in this context?

Answer 4

Settlor’s intention to create a trust or gift etc

Question 5

What actions can create intention to create a trust?

Answer 5

Words, both written and spoken. Conduct can create a trust as well.

Question 6

What is important about the wording in intending to create a trust?

Answer 6

That the words are imperative, as contrasted with precatory wording.

Question 7

What case evidences that a trust need not be formally written?

Answer 7

Paul v Constance (1977)

Question 8

Describe the facts of Paul v Constance

Answer 8

Mr + Mrs Constance married, but separate, but not divorced. Mr Constance injured at work received large settlement. Money put in account registered in Mr Constance’s name. But Mr Constance said the money was as much his as Miss Paul’s. Joint withdrawals. Mr Constance died, Mrs Constance got everything as died in testate. Judged that Miss Paul got half as judged that a trust had been created by the words’ this is as much yours as mine’

Question 9

What does Comiskey v Bowring-Hanbury show?

Answer 9

That imperative clear wording is necessary

Question 10

What does Re Adams & Kensington show?

Answer 10

That precatory wording does not create a trust

Question 11

Dos the phrase ‘in full confidence’ create a trust?

Answer 11

No, dependent on whole document, not individual phrases

Question 12

What are the 2 aspects of the property certainty?

Answer 12

1. What is the property?

2. What is the beneficial interest?

Question 13

Palmer v Simmonds (1854). Describe

Answer 13

The use of the word ‘bulk’ is not sufficient to create a trust as it is too vague

Question 14

Subject matter must be certain, therefore is the use of the word reasonable ok?

Answer 14

No Re Golay’s WT (1965)

Question 15

What cases demonstrate that trust property must be identifiable?

Answer 15

Re London Wine (1986) - Non-segregated property so not identifiable, so not eligible as trust property.
Hunter v Moss - Shares were claimable as even though not segregated, all shares were the same so no need to identify particular shares. So didn’t have to be identifiable as identical.

Question 16

Describe Boyce v Boyce 1849

Answer 16

3 houses left on trust to 2 daughters. 1st daughter got to choose which house she wanted 1st, but the remaining houses went to the other daughter. 1st daughter died, remaining daughter had no claim over the properties as the property she was due to get was not identifiable and certain so no houses. Went back to estate on resulting trust.

Question 17

What does subject-matter refer to?

Answer 17

Property

Question 18

What does objects refer to?

Answer 18

Beneficiaries

Question 19

What certainties must be present to carry out the terms of a fixed trust in relation to objects?

Answer 19

Obligation is fixed, so conceptual and evidential certainty is necessary.

Question 20

What is the authority for the ‘list test’?

Answer 20

IRC v Broadway Cottages (1955)

Question 21

What certainties of objects are necessary for a discretionary trust?

Answer 21

Must be conceptually certain, but does not need to be evidentially certain.

Question 22

What test proves conceptual certainty?

Answer 22

Is/is not test - McPhail v Doulton

Question 23

Re Baden no 2 - What were the 3 different judgents of the is/is not test?

Answer 23

Megaw - AS long as there is a substantial number who you can identify, it doesn't matter that there is some you can not identify
Sachs LJ - The burden is on the person to prove they are in the conceptual category.
Stamp LJ - You must know who is exactly in or out of the conceptually certain object class. Any members of class who you don't know about then the test is void. This is effectively the list test.

Question 24

Is relatives a certain concept? What is definition?

Answer 24

Descent from a common ancestor

Question 25

What are the limitations of the is/is not test?

Answer 25

Concept must be certain

Administrative unworkability

Question 26

What is an example of administrative unworkability?

Answer 26

R v District Auditor - Trust class of West Yorkshire

Question 27

What are the facts of Re Barlow?

Answer 27

Not a trusts case, gift with a condition!!! used object class of friends. Valid because onus was on the object, and required satisfaction of condition. Any reasonable test of ‘friend’ OK as gift has less strict rules, regarding certainty of trust class.

Question 28

What is the effect of lack of intentional certainty?

Answer 28

Outright gift -Adams & Kensington

Question 29

What is the effect of lack of subject matter certainty?

Answer 29

The trust is void - Palmer v Simmonds

Question 30

Property uncertainty?

Answer 30

Returns property to the person wo gave it away - Resulting trust - Vandervell v IRC