TRUSTS

Question 1

What are the 3 certainties

Answer 1

Intention
Subject Matter
Objects

Question 2

Certainty of intention

Answer 2

Conduct not just words
Precatory words
Use of the word ‘trust

Question 3

Certainty of subject matter

Answer 3

Identify the property

Quantum each beneficiary is to receive

Question 4

Certainty of Objects

Answer 4

Who is the beneficiary?

Who can enforce the trust?

Question 5

Which case said the use of word ‘trust’ is not necessarily conclusive in C of intention

Answer 5

Tito v Waddell (No 2) [1977]
“Trust in the higher sense”
A non-enforceable government obligation

Question 6

Who said: a trust can be created by the most untechnical of words

Answer 6

MAITLAND

Question 7

What sort of intention is needed?

Answer 7

Not a general intent to benefit but a specific intent to benefit by way of trust

Question 8

What are precatory words

Answer 8

Words accompanying a gift expressing hope, faith, desire, request or confidence that it will be used in a certain way

Question 9

What context do precatory words normally occur in

Answer 9

Typically occur in context of a will

eg Legacy to wife in confidence that…

Question 10

What did JAMES LJ say in LAMBE 1871

Answer 10

In hearing case after case cited, I could not help feeling that the officious kindness of the Court of Chancery in interposing trusts where in many cases the father of the family never meant to create trusts, must have been a very cruel kindness indeed”

Question 11

Cases for the modern approach to precatory words

Answer 11

Re Adams & Kensington Vestry (1884)

Comiskey V Bowring-Hanbury [1905]

Question 12

Re Adams & Kensington Vestry (1884)

Answer 12

• H left property to W ‘in full confidence that will do what is right… between my chlidren’
• Held it was a trust

Question 13

Comiskey V Bowring-Hanbury [1905]

Answer 13

• “in full confidence that“on her death“she will devise it to…one or more of my nieces.”
• There was gift over clause to nieces in default of appointment providing for equal division
• HL (4 v 1) held gift not absolute but imposed a trust

Question 14

Three aspects of certainty of subject matter

Answer 14

1. Quantum each beneficiary is to receive?
2. Identifying the property subject to the trust?
3. Future property

Question 15

Degree of certainty required in identifying beneficiaries’ shares?

Answer 15

Not necessary in a discretionary trusts

Needed under a fixed trust

Question 16

Cases for fixed trust degree of certainty in identifying beneficiaries’ shares?

Answer 16

BOYCE 1849
PALMER v SIMMONDS 1954
Re GOLAY 1965

Question 17

BOYCE 1849

Answer 17

• Left one of 2 houses to Maria
• ‘Whichever she may think proper to chose’ and the other to her sister
• Trust failed due to lack of certainty

Question 18

PALMER v SIMMONDS 1854

Answer 18

• ‘The bulk of my estate’

- Again failed due to lack of certainty

Question 19

Re GOLAY 1965

Answer 19

• ‘To let Tussy… receive a reasonable income from my properties’
• Again failed due to lack of certainty of object -> identifying the property in the trust

Question 20

3 Cases for precision required in identifying the property in the trust

Answer 20

Re LONDON WINE 1986
Re GOLDCORP 1994
HUNTER v MOSS 1994

Question 21

Re LONDON WINE 1986

Answer 21

• Customers bought wine but did not take possession. - Stored in company’s warehouse.
• Company went into receivership. Trustees appointed. Were bottles subject to trust?
• Court: No. Customers could not identify specific bottles of wine.

Question 22

Re GOLDCORP 1994

Answer 22

• Gold company went bankrupt. Co lacked enough assets to satisfy its debts.
• Who gets the gold? Customers or bank?
• Court: Bank, because the gold wasn’t identified.

Question 23

HUNTER v MOSS 1994

Answer 23

• Moss told Hunter that he would hold 5% of shares of his company on trust for H. - H then sued for the shares.
• High Court: No need to segregate. All the shares are identical.
• Court of Appeal: No need to segregate because the shares are intangible.

-> If thing is intangible then it can’t be claimed precisely so need not be segregated

Question 24

Certainty of objects & the beneficiary principle

Answer 24

MORICE v BISHOP OF DURHAM

Question 25

MORICE v BISHOP OF DURHAM

Answer 25

“Every [non-charitable] trust must have a definite object. There must be somebody in whose favour the court can decree performance