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Trusts; the Threee Certainties

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Trusts; the Threee Certainties Contents TRUSTS; THE THREEE CERTAINTIES ......................................................................................................... 3 Ramifications if failure of certainty ..................................................................................................... 3 What happens to the ‘trust’ property then? .................................................................................. 4 How do courts decide certainty issues? ............................................................................................. 4 Admissibility of Extrinsic evidence .................................................................................................. 4 When is evidence admissible to clarify a will? O’Brien v Smith [2012] .......................................... 5 Certainty of Intention ......................................................................................................................... 6 Mere Precatory words will not suffice Re Williams ........................................................................ 6 Settlor must intend to create a trust immediately ......................................................................... 7 Trust or something else ; Gift to A absolutely with moral obligation to help B, no legal remedy for B if A doesn’t provide benefit (eg Marilyn Monroe case) ......................................................... 8 Trust or something else; To A on condition they help B: common law condition - if A doesn’t perform condition, forfeits property (and B gets nothing)\ ........................................................... 8 Trust or something else; A takes full title with a less formal ‘condition’, might be subject to a personal equitable obligation which B can enforce via equitable compensation or order for specific performance if A doesn’t perform condition (Gill v Gill (discussed in Cobcroft v Bruce S14.2c) ............................................................................................................................................. 8 Trust or something else; A takes legal title subject to an equitable charge, which gives B an enforceable proprietary interest (won’t be examined this year) ................................................. 11 Certainty of Subject .......................................................................................................................... 11 Likely invalid where quantum not clear ........................................................................................ 11 Likely invalid where can’t identify relevant property ................................................................... 11 Likely invalid where Non-fungible assets (not the same) ............................................................. 12 Certainty of object. ........................................................................................................................... 12 Objects (beneficiaries or cestui que trustee) are sufficiently certain ........................................... 12 Trusts for people not purposes (Beneficiary principle) ................................................................ 12 Exercise : spot the ‘certainty of object’ problems ........................................................................ 14 Tests for Certainty of Object: Fixed Trust ......................................................................................... 15 Must meet list certainty test for object ........................................................................................ 15 Example; Commissioner for State Revenue v Viewbank Properties (2004) VSC 127 ................... 15 Trying to losen the test; Controversial West v Weston ................................................................ 15 Tests for Certainty of Object: Discretionary Trusts ........................................................................... 16 Consider the nature of the trustee power .................................................................................... 16 First, what is Criterion Certainty? ................................................................................................. 17 Application of this test; One test for bare power/trust power .................................................... 17 Types of uncertainty of object discretionary trust; conceptual, evidentiary and administratively unworkable ................................................................................................................................... 18 Conceptual uncertainty ................................................................................................................. 18 Administrative Unworkability ....................................................................................................... 18 Examples ........................................................................................................................................... 19 Example 1 ...................................................................................................................................... 19 Example 2 ...................................................................................................................................... 21 TRUSTS; THE THREEE CERTAINTIES The exam: usually an example of someone’s wills and your jobs will be to see whether or not it is valid, another is usually a longer problem solving question on trustees ‘Separation of management and enjoyment qualified’ rule in Saunders v Vautier (B&V 212); No matter what the trustees think the beneficiaries if they meet the condition in that at case can call for the trust property, they can bring the trust to an end and say give me all the money. Eg give me the trust property. If you succeed in this rule that is the end of the trusts Conditions; 1. Have to be of age (can’t be children) 2. Between they have to hold the entire beneficial interest in the trust Sample question from ETR 2016 final exam Maisie’s will: ‘I leave $100,000 on trust to such of my children Jack, Ben and Harry as my trustees select within three years of my death.’ 2 years after Maisie dies, trustees have made no distribution. J, B and H want to get their hands on the trust property: advise them. If J, B and H are of age and between them hold entire beneficial interest in trust property, can call for the property and terminate the trust, even if trustees disagree. Discretionary trust or fixed trust? Bare power or trust power? More on this later in course E requires that 3 certainties are met: . Certainty of intention . Certainty of subject . Certainty of object Then need to consider formalities (Week 7) Ramifications if failure of certainty If no intention to create a trust, no trust If subject uncertain, no trust (eg this to my ‘old best friend’, or ‘people of greater london’) but courts these days will work really hard to identify who the trusts is for) If object is o . ‘conceptually uncertain’ or ‘administratively unworkable’ no trust o . Hard to identify (‘evidentiary uncertainty’) trust may be held to exist (next week’s lecture) What happens to the ‘trust’ property then? Where no intention to create a trust or subject uncertain and property transferred, donee takes absolutely, his/her estate if donee later dies If post-mortem trust in will fails because no intention to create a trust, property reverts to the residuary estate If uncertainty of object but OK certainty of intention and subject, the donee holds on resulting trust for settlor Example: Paul v Constance Lecture 4 . What was the uncertainty problem in this case? . What was the alleged trust subject,object? . What would have happened to the subject if trust failed? Sample question from 2016 final exam Q 4 ‘I now hold this pen on trust for Mary.’ Am I disposing of a subsisting (existing) equitable interest in the pen? (5 marks) No- I’m disposing of my property interest, the creation of the trust is what creates the equitable interest (was not pre-existing) How do courts decide certainty issues? Depends on Settlors’s intention at the time property transferred Question of fact (Deane J, Muchinski v Dodds) Have regard to . The language used . Nature of the property . Nature of the obligation (Gill v Gill) -revert back to these general ones if you get lost in exam. Equity’s rules Generally follow common law rules of contract construction (have regard to whole document and read troublesome clause in context; evidence of surrounding circumstances permitted where language ambiguous or susceptible of more than one meaning, Codelfa) Admissibility of Extrinsic evidence (1) Where intention clear but words re subject or object ambiguous, court is entitled to ‘sit in the testator’s armchair’ (O’Brien v Smith [2012] QSC 166, to search for a private ‘dictionary meaning’ (Re Gulbenkian) eg emails identifying who indeed are her ‘old friends’. Only goes to actual factual circumstances, not direct evidence of intention re subject or object “eg ‘bob told me he was to give me this money’ (2) Second situation where extrinsic evidence admitted is where there is an equivocation: o ‘An equivocation rises where words in the will contain a latent ambiguity. That is the specific words of the will can equally be used to describe equally and accurately two or more things. o Here the court will (contrast to point (1)) admit extrinsic evidence of the testator’s intentions (eg declarations by the testator of his intentions before or after he made the will and any actual instruction to the solicitor
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