3 Certainties

  • Created by: kayleigh
  • Created on: 28-04-18 11:49
What case shows the basic test of cetainty
Knight v Knight
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What did Lord Eldon in Wright v Atyns say?
"The words must be imperative"
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What is the question asked when looking for certainty of words or intention?
Is there an unequivocal and irrevocable intention to create a trust?
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What did Mergarry J say in Re Kayford?
"It is well settled that a trust can be created without using the word 'trust' or 'confidence' or the like; the question is whether in substance a sufficient intention to create a trust has been manifested'
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Will the Court consider all facts in their own merit?
Yes
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What are example of precatory words?
Hope, Desire, Wish, In Confidence
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What case shows examples of precatory words
Re Diggles
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What was said in Lambe v Eames?
'to be at her disposal in any way she may think fit, for the benefit of herself and her family'
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What other cases govern certainty of words or intention?
Re Adams & the Kensington Vestry; Comsky v Bowring-Hanbury
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What was said in Jones v Lock?
'I give this to baby and I'm going to put it away for him'
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What was said in Paul v Constance?
'this money is as much yours as mine'
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What cases govern Question of Fact?
Re Kayford; Mac-Jordan Construction Ltd v Brookmount Erostin Ltd; Re Farepak Foods and Gifts Ltd; Don King Productions Inc v Warren
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What is the effect of uncertainty with regards to intention?
No trust
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What is the effect of uncertainty in intention if the property was transferred?
Donee takes absolutely as in Re Adams & The Kensington Vestry
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What is the effect of uncertainty in intention if the property was not transferred?
The property remains with the donor in Jones v Lock
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What is considered in the certainty of subject matter?
The trust property and the extent of the beneficial interest
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What cases are usd to describe the trust property?
Palmer v Simmonds; Re Golays Will Trust
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What was said in Palmer v Simmonds?
'The bulk of my residuary estate'
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What was said in Re Golay's Will Trust?
'I direct my executors to let Tossy to enjoy one of my flats during her lifetime and to receive a reasonable income from my other properties'
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What was decided in Re London Wine Co Ltd?
Tangible property must be segregated
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What cases govern the impossibility to segregate intangible property?
Hunter v Moss; Goldcorp Exhcnage Ltd; Re Harvard Securities
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What case governs the extent of beneficial interest?
Boyce v Boyce
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What are the exceptions to the rule in Boyce v Boyce?
Discretionary trusts where the trustees choose and Fixed trusts where EQUITY IS EQUALITY
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What is the effect of uncertainty with regards to subject matter?
It depends on the circumstances
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What if there is uncertainty with regards to the trust property?
If it's an inter vivos trust the property remains with the settlor but if it's a Will Trust the property will pass by Will or intestacy on resulting trust
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What if there is uncertainty with regards to the extent of beneficial interest?
If the property was NOT transferred it remains with the settlor; If the property IS transferred it is held on trust for the settlor
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What is certainty of objects?
Who the beneficiaries are
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What was decided in Morice v Bishop of Durham
A private trust should have an ascertainable beneficiary - this is someone to enforce the trust
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Who enforces the public trusts (charities)?
The Attorney-General
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What are the main cases for Certainty of Objects?
McPhail v Doulton; Baden No 2
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What are the four constituent elements of certainty of objects?
1. Conceptual certainty 2. Evidential certainty 3. Ascertainability 4. Administrative workability
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What is conceptual certainty?
Clarity in defining the class of beneficiaries
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What was said in Re Leek?
'such persons who may have a moral claim'
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What is evidential certainty?
Identifying the full range of beneficiaries in aforementioned class
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What case looks at ex-employees with regards to evidential certainty?
Re Sayer
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What is ascertainability?
Whereabouts and continued existence
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What is administrative workability?
Where the trustee knows exactly who should benefit, but the class size is too large to realistically manage
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Do both fixed trusts and discretionary trusts have conceptual certainty?
Yes
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Do both fixed trusts and discretionary trusts have evidential certainty?
No. Fixed trusts specify exactly the number of beneficiaries and the extent of their interest. Discretionary trusts allow trustee to select beneficiaries from and class and/or determine the quantum of their entitlement
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Do both fixed trusts and discretionary trusts have ascertainability?
No. In a fixed trust the beneficiary acquires a vest interest in the creation of the trust. In a discretionary trust it usually uses precatory words which means the beneficiaries do not have any right to the property, merely a 'hope'
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Do both fixed trusts and discretionary trusts have administrative workability?
No. In a fixed trust a trustee MUST draw up a COMPLETE LIST of beneficiaries. In a discretionary trust this is not need as the trustees can used individual ascertainability
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What case governs administrative workability in fixed trusts?
IRC v Broadway Cottages
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What case governs administrative workability in discretionary trusts?
McPhail v Doulton; Re Manisty's Settlement; R v District Auditor W. Yorks
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What case governs third party involvement in certainty of objects?
Re Tuck - he approved a wife according to the Jewish faith
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What is third party involvement with regards to certainty of objects?
Trustees or a third party may be given the power to decide if a person is a beneficiary
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What is gifts subject to conditions precent with regards to certainty of objects?
It is where a beneficiary will acquire an interest when he satisfies a relevant conditions
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What case governs gifts subject to conditions precent?
Re Allen; Re Barlow's Will Trusts
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What was said in Re Allen
'a member of the Church of England and adherent to the doctrine of that Church'
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What is the effect of uncertainty with regards to certainty of objects?
The property is held on resulting trust for the settlor
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Card 2

Front

What did Lord Eldon in Wright v Atyns say?

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"The words must be imperative"

Card 3

Front

What is the question asked when looking for certainty of words or intention?

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Card 4

Front

What did Mergarry J say in Re Kayford?

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Preview of the front of card 4

Card 5

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Will the Court consider all facts in their own merit?

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