Three Certainties Flashcards
Knight v Knight [1940]
- 3 certainties required for a valid express trust:
- Intention (to create a trust)
- Subject-Matter (the property subject to the trust)
- Objects (beneficiaries)
Certainty of Intention
- It must be clear that the settlor has shown a clear intention to create a trust.
- Usual to look at words used by settlor to ascertain their intention.
Imperative words
Show an intention to create a legally binding obligation
Precatory Words
Express a mere hope or a wish
Lambe v Eames (1871)
- Courts lean against finding a trust when precatory words are used.
Re Adams and the Kensington Vestry [1884]
- Words used did NOT indicate an intention to impose a legally binding obligation on her.
‘in full confidence that she will do what is right as to the disposal thereof between’
Comiskey v Bowring-Hanbury [1905]
- Words used DID indicate an intention to impose a legally binding obligation on her.
- ‘absolutely, in full confidence that she will make such use of it…And in default of any disposition by her thereof by her will or testament I hereby direct that all my estate and property…shall be divided among the surviving said nieces.*
Paul v Constance [1977]
An intention to create a trust can also be inferred from the donor’s conduct.
Dispute over whether Mr C’s wife (from whom he was separated but not divorced) or his new partner, Mrs P, was entitled to money held in a bank account in the deceased’s sole name. During their relationship Mr C had made arrangements for Mrs P to withdraw money with his permission. Only Mr C withdrew money once, which was split evenly between them and he often told Mrs P that the money was ‘as much yours as mine’. They also paid some joint bingo winnings into the account.
Decision: Held these actions were suf
Certainty of Subject Matter
- It must be certain what property is subject to the trust for there to be a valid trust.
- Certainty of subject matter comprises 2 separate, though related, aspects, namely certainty of:
- Property – it must be certain what property is subject to the trust
- Beneficial entitlements – it must be certain what part of the property each beneficiary is entitled to or how their beneficial entitlements will be determined.
Sprange v Barnard [1789]
“the remaining part of what is left” was too uncertain for the trust to take effect over any part of the property because the property was not sufficiently clearly identified by the expression
Palmer v Simmonds [1854]
- the bulk of my estate – insufficiently certain to ascertain the trust property.
Boyce v Boyce [1849]
Even if the property is clear, it must be certain how it will be divided among beneficiaries.
- Elder daughter should receive house of her choosing and other houses conveyed to younger daughter. Eldest daughter died in testator’s lifetime so could not choose a house. No trust in favour of youngest daughter as her interest could not be determined until eldest daughter had chosen. No longer possible so trust void for uncertainty of subject matter.
Re Golay’s Will Trusts [1965]
Provision that a ‘reasonable income’ be provided out of a fund could be held to be valid if one could make an objective measurement of what would constitute a reasonable income in any particular case
Re London Wine Co (shippers) Ltd [1986]
Tangible property subject to a trust must be segregated or separately identifiable when stored with other similar property for there to be certainty of subject matter
Buyers of wine sought to establish a trust over bottles of wine stored in the seller’s warehouses. No trust had been created as bottles had not been segregated or identified in any way. Therefore, when seller went into liquidation, couldn’t say particular bottles were held in trust for them
Re Goldcorp Exchange [1995]
Tangible property subject to a trust must be segregated or separately identifiable when stored with other similar property for there to be certainty of subject matter
- Purchasers of gold bullion claimed rights to it on the insolvency of company. Claims rejected as no identifiable property, even though every piece of gold bullion was fundamentally identical.
- Compare with Hunter v Moss