Three Certainties - Rev notes Flashcards
the three certainties
- certainty of intention
- certainty of subject matter
- certainty of object
The three certainties - origin case
= Lord Langdale in Knight v Knight (1840)
Certainty of intention
needs to be evidence that S intends to create a trust
=> as in create a ‘trust-like’ sitº where T doesn’t hold the right for himself by for the benefit of another
CI - elements (4)
- using word ‘trust’ not necessary: Richards v Delbridge, Paul v Constance
- intention to create a trust like situation : Paul v Constance
- intention to create a legally binding duty : Re Adams and Kensington Vestry
- intention to make a gift (which turns out to be imperfect) not enough : Milroy v Lord
Certainty of subject matter
= must be possible to ascertain which are the rights T is supposed to be holding on trust
=> “the creation of a valid trust requires the existence at that time of some assets to which the trust would apply” - David Richards LJ in North v Wilkinson at [14]
CSM - the rules (3)
- In principle, any right can be held on trust: land, chattels, choses in action…
- Even unassignable rights = Swift v Dairywise Farms Ltd (unassignable milk quotas) or Don King Productions Inc. v Warren (contractual rights subject to a non-assignment clause)
- BUT can’t declare a trust of rights to be acquired in the future = Re Ellenborough
CSM - problematic cases (3)
- vague or uncertain description
- failure to segregate
- testamentary disposition
CSM - vague or uncertain description
- Palmer v Simmonds: testatrix’s direction to hold ‘the bulk of my residuary estate” too uncertain bcs impossible to ascertain whether a given right is pt of the bulk or not (no clearly right or wrong answer)
- Contrast with North v Wilkinson: ‘the assets of a particular business’ is ok bcs there is a right answer, even if diff to find)
CSM - failure to segregate - tangibles - rule & reason
Rule: purported DOT over title to part of a collection of similar / identical (unsegregated) tangible things will fail for USM
Reason = if pt of tangible mass gets damaged, imp to know whose got damage
= Re London Wine Co and Re Goldcorp
CSM - failure to segregate - tangibles - Re London Wine Co
identical wine bottles sold to and stored for clients but not segregated / specifically assigned not held on trust bcs uncertainty subj matter (would’ve been sufficient stock)
CSM - failure to segregate - tangibles - Re Goldcorp
portions of bullion sold to customers but not specifically ID or segregated :
- title doesn’t pass on sale, only once identified
- no trust either bcs uncertainty of subject matter (wouldn’t have been sufficient stock)
CSM - failure to segregate - intangibles
Hunter v Moss : fact that 50 (out of 950) indistinguishable shares assigned to B enough for certainty of SM (any 50 would do), no need for them to be segregated
CSM - Failure to segregate - testamentary dispositions
Not so much of a pb bcs executor under fiduciary duty to segregate / ID subject matter
Certainty of object
= for whom does T hold the rights on trust ?
CO - fixed trusts
‘fixed list’ / ‘complete list’ test = IRC v Broadway Cottages
CO - fixed trusts - identifying them
2 key features
(1) Ts have no power to determine who are the beneficiaries
(2) Ts have no power to determine the size of the beneficiaries’ shares
CO - Fixed trusts - ‘complete list test’
authority = Broadway Cottages v IRC it must be possible to draw a complete list of beneficiaries
- Reason = only possible to make a distribution where the number of beneficiaries matters if you know who all the Bs are
- not a pb if can’t find B, as long as identified (pay their share into court)
CO - DTs vs MPs - common features (2)
- T has some discretion as to either ID of Bs and/or respective share of each B
- is or is not test
CO - DTs vs MPs - distinction
Obligation vs possibility
- DT: T must / has a duty to exercise his discretion and make a choice
- MP : T may exercise his discretion but doesn’t have to, settlement provides solution if doesn’t
CO- duties of holder of MP
= Megarry VC in Re Hay’s ST: duties of a mere power holder are threefold - T must:
(i) Consider periodically whether or not to exercise the power
(ii) Consider the range of objects of the power
(iii) Consider the appropriateness of individual appointments
+ obviously duty to obey trust settlement
CO - court not supposed to compel exercise of a MP
= Lord Wilberforce in McPhail v Doulton
CO - is or is not test - MPs
= *Re Gulbenkian’s ST**
CO - is or is not test - DTs
= McPhail v Doulton
=> Lord Wilberforce adopting the test in Re Gulbenkian for DTs as well as MPs
“the trust is valid if it can be said with certainty that any given individual is or is not a member of the class”
CO - is or is not test - Lord W overruling IRC v Broadway Cottages
Court in Broadway Cottages relied on assumption that only way for court to enforce a DT = equal division among all objects needs a fixed list
=> Lord W rejects that view bcs equal division “surely the last thing the settlor intended” + “produces a result beneficial to no one” in case of a wide class
=> court can exercise T’s discretion (?)