Equity - Three certainties- Certainty of Intention

Certainty of Intention

• Intention is established by considering all circumstances of the case
• Equity looks to intent rather than form.
• Look out for indicators of intention.
• Imperative or precatory language? - Lamb v Eams 1871- Precatory -hope, a wish, or moral obligation (typically indicates a gift intended.
• Imperative words- express a comand - a duty to do aomething - Indicating a trust (or power) is intended.

Cases

• Lambs v Eams 1871 - 'to be at ger disposal in any way she may think best, for the benfit of herself and her family.

• Re Adams and Kensington Vestry 1884- 'In full confidence that she would do what is right'.

• Re Diggles 1888 - ' It is my desire that my daughter allows Anne an annuity of £25 during her life.

Key note  - Courts are guided by language used, presence of precatory words will not necessarly prevent the court from finding that a trust exists, long as it is satisfied that this was the intention of the donor.

Comiskey v Borrowing-Handbury 1905 - testator left his wife whole of his estate "in full confidence that she will make such use of it as I should have made myself and that at he rdeath she will devise it…