Creation, Formalities and Certainties

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3 Certainties

Parties to a trust



Settlor:            Paul v Paul (1882) – irrevocability

Trustee:           Barclays Bank v Quistclose Investments
                        Ltd (1970) – T has legal title BUT property
                        not part of Ts estate

Beneficiary:     Right to compel Ts to carry out terms of trust
Morice v Bishop of Durham (1805) – beneficiary needed, ie some person in whose
 favour the court can order performance
Tinsley v Milligan [1994] – proprietary and& Target Holdings [1996]   personal rights


        If T has a ‘power of appointment’ he can select Beneficiary from a range of potential Beneficiaries, OR

        If there is a contingent interest (dependant upon some event e.g. marriage) then B has no enforceable right to the property, simply an unenforceable hope that T will exercise his power in his favour

        When it is certain that a B is entitled to an interest it is a “vested interest” e.g. to A for life and B in remainder – both have vested interests

Courts Inherent Jurisdiction to Vary a trust

Rule in Saunders

When Bs absolutely entitled and Sui Juris (over 18 and no incapacity) they can agree to bring the trust to an end irrespective of the wishes of the Ts or the S.
Ie ask to deliver up property and give absolutely
The role of T in balancing conflicting interests has gone (all Bs agree) and the trust is to equity what a gift is in common law, Re Bowden [1936] – their wishes now outweigh those of the Settlor


Where the beneficiaries of a trust are absolutely entitled, of full age, competent and of one mind, they can terminate the trust.

(Sunders v Vautier 1841) The testator bequeathed his East India stock to his trustees upon trust to accumulate the interest and dividends until Daniel vaultier reached the age of 25years. There after, the stock, the accumulated interest and dividends were to be transferred to Daniel Vaultier absolutely. Upon reaching the age of 21, Daniel Vaultier applied for the transfer of the stock, the accumulated interest and the dividends to him absolutely. Held the trust fund should be transferred to him.  The rule applies where the interest is vested ie B’s entitlement is certain.

·       Case authority for the proposition that where all the beneficiaries are of full age, Sui Juris and absolutely entitled to the trust fund, they can terminate the trust and direct the trustees to transfer the trust fund to them even though this may be against the testators or settlors intention.

·       All or nothing process, effect of the rule is to terminate the existing trust; Stephenson v Barclays bank trust

Applying Saunders

  1. If property is held for 2 Bs who must reach age 25 and 1B reaches 25 whilst the other is over 18 – if sui juris they can invoke the rule because if younger B dies, his share will go to the


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