Express trusts and three certainties

Created by: vicarinatutu
Created on: 12-02-20 16:27

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Three Certainties cases
- Certainty of intention
  - Comiskey v Bowring-Hanbury [1905]
    - 'In full confidence that she will make such use of it as I should have made myself'
      - 'In full confidence' may create gift if read alone
        Court read the rest of the will to find T's intention for the nieces to acquire an interest
    - Nieces to have remainder on widows death
    - Trust
  - Re Adams and Kensington Vestry (1884)
    - Testator left property to wife 'in full confidence that she would do what was right' as to disposal for children
      - Reference to children was merely to call to widows attention the moral obligations he had though of when writing the will
    - Absolute gift
  - Re Diggles (1888)
    - Precatory wording
      - 'It is my desire'
    - Tx left estate to daughter requiring she paid her friend an allowance
  - Lambe v Eames (1870-71)
    - T left estate to widow to do 'what she may think best' in regards to family
    - Absolute gift
    - Similar wording had led to create trust before but precedent not accounted for
    - T's actual intention was accounted for rather than depriving an illegitimate child of the gift
  - Paul v Constance [1977]
    - Money held in bank under Mr. Constance's name for them both
    - Repededly said to Mrs. Paul 'the money is 'as much yours as it is mine'
      - This reassurance was enough to find a trust, despite the absence of the word 'trust'
  - Re Kayford [1975]
    - Megarry J- do not need to use the word trust- court should look to substance to see sufficient intention to create a trust
    - Before K went insolvent they transferred deposit money into a separate account to keep it safe for customers
      - This conduct created a trust
  - Jones v Lock 1865
    - T put cheque in babies hand claiming it to be his but he had no intention to create a trust
    - No trust
- Certainty of subject matter
  - Conceptual certainty
    - Palmer v Simmonds (1854)
      - Tx left estate to H for his own use with 'confidence' he would leave the bulk of the residuary to certain people
      - Kindersley V-C asked 'what is the meaning then of bulk?'
      - No trust as the subject was not clear
    - Re Kolb's WT [1962]
      - Trustee's were to invest in 'blue chip category'shares
      - Blue chip categories can change- not sufficiently certain to give rise to trust
    - Anthony v Donges
      - 'Such minimal sum'
        Too uncertain
  - Certainty as to beneficial share
    - Boyce v Boyce (1849)
      - T left two houses for M and C with M to pick which she wanted and C to have the remaining house
      - M died before choosing
      - Gift to C did not succeed as it was uncertain which she should have had
    - Re Golay's WT [1965]
      - T allowed woman to receive a 'reasonable income' from his properties
      - The court said 'reasonable income' didn't make the trust void due to uncertainty
        Ungoed- Thomas J saw it an objective determination which the court was capable of carrying out
- Certainty of objects
  - Fixed trusts
    - IRC V Broadway Cottages Trust [1955]
      - 'Complete list test'
      - Trust to benefit group of people as the trustees saw fit
      - It was not possible to say with certainty who was or was not a member of the class
      - Trust void
    - Re Benjamin [1902]
      - 'Benjamin order'
        Allows trustees to divide property as if missing listed beneficiary was dead
  - Powers
    - Re Gulbenkian's Settlement Trusts [1970]
      - Trustees or court must be able to say with certainty who is within and who is without the power
  - Discretionary trusts
    - McPhail v Doulton [1970]
      - 'Cut the Gordian knot'
      - If power- trustees would be able to appoint whoever
      - If trust- trustees would only be able to appoint beneficiaries if everyone could be identified
        Fixed-list test
      - Trust created
      - Lord Wilberforce
        In case of trust power, if trustees do not exercise it, the court will
        
        If court needs to execute trust power, it will do so paying attention to testators intentions
        
        Identified third case of uncertainty
        Links to
        R v District Auditor ex p. West Yorkshire Met County Council [1986]
        Trust set up for inhabitants of West Yorkshire
        
        Administratively unworkable- trustees couldn't be expected to survey all beneficiaries
- Limitations
  - Conceptual uncertainty
    - Sparfax v Dommet (1972)
      - 'Customers' was too broad- trust invalid
    - Cf Re Baden's Deed Trusts (No. 2) [1972]
      - Case taken to High Court to apply the individualascertainability test to determine whether 'relatives' must fail for uncertainty
        Appealed against and taken to Court of Appeal
  - Evidentual uncertainty
    - Re Barlow [1979]
      - 'Friend' was too broad
      - Contrast with
        Re Tuck's Settlement Trusts [1978]
        Beneficiary of gift had to be of Jewish faith
        
        Jewish had a precise meaning unlike friend so trust was found
    - Re Tuck's Settlement Trusts [1978]
      - Beneficiary of gift had to be of Jewish faith
      - Jewish had a precise meaning unlike friend so trust was found
  - Administrative unworkability
    - R v District Auditor ex p. West Yorkshire Met County Council [1986]
      - Trust set up for inhabitants of West Yorkshire
      - Administratively unworkable- trustees couldn't be expected to survey all beneficiaries

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Express trusts and three certainties

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