DOCSLIB.ORG

Equity Notes

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Equity Notes THREE CERTAINITIES • An express trust must be certain in three (3) distinct respects (Knight v Knight (1840)): 1) Certainty of intention: settlor must have intended to create a trust of the property as opposed to making a gift or lending it to another; 2) Certainty of subject-matter: property must be specified with reasonable certainty; 3) Certainty of objects: the beneficiaries of trust must be sufficiently identifiable. • Charitable trusts are not required to satisfy the requirement of certainty of objects. • Resulting and constructive trusts will not satisfy the requirement of certainty of intention. CERTAINTY OF INTENTION • The settlor must’ve intended to create a trust of their property as opposed to making a gift or a loan. • An intention to create a trust is an intention to impose on a property owner an obligation to apply the property for the benefit of identified beneficiaries or for recognised charitable purposes. • The settlor must’ve intended to create a legally binding relationship. • The settlor need not need to use the word “trust” or any particular words: Re Armstrong [1960]. • The intention is determined by reference to the settlor’s objective intention: Byrnes v Kendle [2011], question is whether a reasonable person would consider that in all the circumstances the settlor intended to create the trust? Must consider the settlor’s words and actions to assess whether they manifested a sufficient objective intention to create a trust: Paul v Constance [1977]. • A settlor must intend to create a trust which takes effect immediately (unless consideration had been provided to create trust at later time): Harpur v Levy [2007]. • The only circumstances in which a settlor’s subjective intention is relevant is where it is alleged that the trust is a sham, or voidable for mistake, misrepresentation, duress, undue influence or unconscionability, or where rectification of the trust instrument is sought on the ground that it does not represent the parties’ actual intentions. • The term ‘precautionary words’ mean words of prayer or words that express a hope or wish, without intending to impose enforceable obligations on the recipient of property. They tend to be invalid trusts, and more like moral obligations: Harding v Glyn (1793); Re Williams; Dean v Cole (1921). Shams • A trust is a sham where settlor deals with property otherwise in accordance with terms of the trust created, with the intention of deceiving third parties as to the settlor’s real interest in the property. • The objective appearance is a trust, but subjective intention is to create that appearance to deceive. There is no intention for trust to govern relationship between parties. CERTAINTY OF SUBJECT MATTER • The subject of the trust must be certain to be enforceable – trust cannot exist without property. • The subject-matter must constitute legally recognised property. • It can be real or personal tangible property, or intangible property. It can be legal or equitable. • The settlor must have present property rights – cannot have future property on trust. o Exception: when consideration paid in exchange for declaration of trust: Tailby v Official Receiver (1888) • The quantum or amount of property to be held must be clearly identified: Boyce v Boyce (1849) – four houses transferred on trust, trustee to allow Maria to choose a house and other three houses to go to Charlotte but Maria died before making a choice. • The amount of property cannot be vague: Palmer v Simmonds (1854) – the “bulk of my estate” cannot be clearly defined; Bardswell v Bardswell (1838) – direction to “remember” certain persons; Knight v Knight (1840) – direction to “reward very old servants and tenants according to their deserts”. o The subject-matter can be certain even if quantum will be determined by trustee, provided that the criteria applied by the trustee can be objectively assessed. Resolving Uncertainty • There are a number of ways uncertainty can be resolved in respect to subject-matter: 1) Interpretation: courts can interpret what settlors meant in trust: Re Golay’s Will Trust – courts can interpret what “reasonable” to find objective meaning in context and courts are constantly involved in making such objective assessments of what is reasonable. 2) Extrinsic evidence in interpretation: o Evidence of surrounding facts and circumstances (known as armchair principle): Jepson v Bowman [2014] – sitting in armchair of person who created trust and asking what that person would’ve meant. o Direct evidence of settlor’s intention (ie. instructions to lawyer or diary) but only when: i. There is a will: s 36 of Wills Act 1997(Vic) (allows admittance of evidence of subjective intention); ii. The equivocation principle applies: Dec v Oikonomou – settlor left his “house on trust”, but owned two house and was uncertain which house he meant, so court allowed evidence to determine which of the two he meant. 3) Share in larger subject-matter: only applicable where trusts created as part of fungible mass (items that are all the same) – ie. 200 shares held on trust but settlor holds 400 shares, it is presumed that all 400 shares are held on trust for settlor and beneficiary in equal shares: Ellison v Sandini Pty Ltd [2018]. Consequences of Uncertainty • If property remains uncertain or is not included in trust, there is no trust for property to attach to. • If property is identifiable but there are uncertain interests in the property, then trustees cannot execute intended trust which deems it invalid and must return property to the settlor. o If settlor is dead, the property must be returned to deceased estate. CERTAINTY OF OBJECTS • The beneficiaries of a trust must be identifiable. • The trust must contain beneficiaries as it’s a relationship between trustees and beneficiaries, and if there are no beneficiaries then trustees cannot owe duties to anyone. • The beneficiaries do not need to be named, but trust must have workable definitions of beneficiaries to be able to determine to whom trustees owe duties to (beneficiary principle). • There are two types of uncertainties in terms of objects (Re Gulbenkian): 1) Evidentiary uncertainty: lack of factual information about existence, identity or location of beneficiaries, and instances when it is impossible to have complete factual information about beneficiaries (ie. a person’s siblings – unknown whether person has more siblings). a) Evidentiary uncertainty will not invalidate a trust. 2) Conceptual uncertainty: vague or imprecise definitions (ie. person’s favourite colleagues). b) Has ability to invalidate a trust. Resolving Uncertainty • There are ways to resolve uncertainty depending on whether trust is a fixed or discretionary trust: 1) Fixed trusts: o List certainties test – trustees must be able to make a complete list of beneficiaries. o Evidentiary uncertainty will not invalidate fixed trust: Kinsela v Caldwell (1975). o The court has a duty to make sense of settlor’s meanings: Re Gulbenkian. o If trustees are not sure whether their list is complete, they can ask the court to approve the distribution to protect them from breach of their duties: Re Benjamin Orders [1902]. o If trustees cannot name all beneficiaries but have taken all reasonable steps to locate them, the court may approve distribution if it is satisfied on the balance of probabilities that the substantial majority of beneficiaries have been ascertained and that no more reasonable inquiries can be made: West v Weston. 2) Discretionary trusts: o Criterion certainty test: whether trustee can decide whether person is within specified class of beneficiaries or not: McPhail v Doulton; Re Baden [No 2]. • Additionally, the courts can resolve uncertainty by engaging in: 1) Interpretation: courts can interpret what settlors meant in trust: Re Golay’s Will Trust – courts can interpret what “reasonable” to find objective meaning in context and courts are constantly involved in making such objective assessments of what is reasonable. 2) Extrinsic evidence in interpretation: o Evidence of surrounding facts and circumstances (known as armchair principle): Jepson v Bowman [2014] – sitting in armchair of person who created trust and asking what that person would’ve meant. o Direct evidence of settlor’s intention (ie. instructions to lawyer or diary) but only when: iii. There is a will: s 36 of Wills Act 1997(Vic) (allows admittance of evidence of subjective intention); or iv. The equivocation principle applies: Dec v Oikonomou – settlor left his “house on trust”, but owned two house and was uncertain which house he meant, so court allowed evidence to determine which of the two he meant. Consequences of Uncertainty • If the beneficiaries cannot be identified with sufficient precision or the court decides it cannot legitimately approve a distribution that probably leaves out beneficiaries because they cannot be identified then trust is invalid because trustees cannot carry out the intended trust, and trustees must return property to settlors. o If settlors is dead, trustees must return property to deceased estate. RESULTING TRUSTS AUTOMATIC RESULTING TRUSTS • An automatic resulting trust arises upon failure of an express trust – the trustee holds the property on resulting trust for the settlor or the settlor’s estate if they are deceased, or to whomever the trust instrument provides (either expressly or impliedly). The trust returns to the settlor. o Failure can occur for numerous reasons including: c) the failure to comply with legal requirements (ie certainty of objects or interests in subject matter, the perpetuity rule, breach against public policy ect.); or d) the reason for creating the trust no longer exists. • The general principle: there is a gap between the beneficial interests in trust property and there is no mechanism for disturbing the assets. There is not enough fixed interests to cover all the property. RESULTING TRUST THEORY Theory of Resulting Use • The theory of the resulting use – settlor owed legal title and beneficial title, and when use was created, only the legal title was transferred, and settlor would retain beneficial title.
Load more

Recommended publications
  • “The Execution of a Trust Shall Be Under the Control of the Court” : a Maxim in Modern Times
    This is a repository copy of “The execution of a trust shall be under the control of the court” : A Maxim in Modern Times. White Rose Research Online URL for this paper: https://eprints.whiterose.ac.uk/88217/ Version: Published Version Article: Nolan, Richard orcid.org/0000-0002-7134-5124 (2016) “The execution of a trust shall be under the control of the court” : A Maxim in Modern Times. Canadian Journal of Comparative and Contemporary Law. pp. 469-496. ISSN 2368-4046 Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing [email protected] including the URL of the record and the reason for the withdrawal request. [email protected] https://eprints.whiterose.ac.uk/ (2016) 2(2) CJCCL 469 “e execution of a trust shall be under the control of the court”: A Maxim in Modern Times Richard C Nolan* This article examines the ancient, well attested, but largely unexamined, inherent jurisdiction of the court to supervise, and if necessary administer and execute, any trust. It considers the modern and inventive use of this jurisdiction, and its vital role in the juridication of innovative trust practice.
    [Show full text]
  • Key Facts and Key Cases
    KEY FACTS KEY CASES Equity & Trusts 25726.indb i 18/11/2013 10:40 KEY FACTS KEY CASES The Key Facts Key Cases revision series is designed to give you a clear understanding and concise overview of the fundamental principles of your law course. The books’ chapters refl ect the most commonly taught topics, breaking the law down into bite- size sections with descriptive headings. Diagrams, tables and bullet points are used throughout to make the law easy to understand and memorise, and comprehensive case checklists are provided that show the principles and application of case law for your subject. Titles in the series: Contract Law Criminal Law English Legal System Equity & Trusts EU Law Family Law Human Rights Land Law Tort Law For a full listing of the Routledge Revision range of titles, visit www.routledge.com/law 25726.indb ii 18/11/2013 10:40 KEY FACTS KEY CASES Equity & Trusts Chris Turner and Judith Bray Routledge Taylor & Francis Group LONDON AND NEW YORK 25726.indb iii 18/11/2013 10:40 First edition published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Chris Turner and Judith Bray The right of Chris Turner and Judith Bray to be identifi ed as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.
    [Show full text]
  • Text, Cases and Materials on Equity and Trusts
    TEXT, CASES AND MATERIALS ON EQUITY AND TRUSTS Fourth Edition Text, Cases and Materials on Equity and Trusts has been considerably revised to broaden the focus of the text in line with most LLB core courses to encompass equity, remedies and injunctions and to take account of recent major statutory and case law developments. The new edition features increased pedagogical support to outline key points and principles and improve navigation; ‘notes’ to encourage students to reflect on areas of complexity or controversy; and self-test questions to consolidate learning at the end of each chapter. New to this edition: • Detailed examination of The Civil Partnership Act 2004 and the Charities Act 2006. • Important case law developments such as Stack v Dowden (constructive trusts and family assets), Oxley v Hiscock (quantification of family assets), Barlow Clowes v Eurotrust (review of the test for dishonesty), Abou-Ramah v Abacha (dishonest assistance and change of position defence), AG for Zambia v Meer Care & Desai (review of the test for dishonesty), Re Horley Town Football Club (gifts to unincorporated association), Re Loftus (defences of limitation, estoppel and laches), Templeton Insurance v Penningtons Solicitors (Quistclose trust and damages), Sempra Metals Ltd v HM Comm of Inland Revenue (compound interest on restitution claims) and many more. • New chapters on the equitable remedies of specific performance, injunctions, rectification, rescission and account. • Now incorporates extracts from the Law Commission’s Reports and consultation papers on ‘Sharing Homes’ and ‘Trustee Exemption Clauses’ as well as key academic literature and debates. The structure and style of previous editions have been retained, with an emphasis on introduc- tory text and case extracts of sufficient length to allow students to develop analytical and critical skills in reading legal judgments.
    [Show full text]
  • Creation of Express Trusts Capacity
    Creation of Express Trusts Capacity - ‘Legal competency or qualification’ - Two common exclusions = poor mental health, infancy - S1(6) LPA 1925: a minor cannot hold a legal estate in land (so cannot create a trust of land). THE THREE CERTAINTIES - Knight v Knight: Lord Langdale: for an express trust to be created the settlor must express 3 things with certainty. o Certainty of intention o Certainty of subject matter o Certainty of objects Certainty of Intention - Did settlor intend to subject the property to a trust obligation? - Two ways in which a trust can be created: o The settlor declares himself trustee of property that he already owns; o Settlor transfers property to another person directing that they hold it on trust for the beneficiary. - Has the settlor done enough to make clear his intention? - Re Kayford Ltd – Megarry LJ: ‘a trust can be created without using the words “trust” or “confidence” or the like; the question is whether in substance a sufficient intention to create a trust has been manifested’. - Company opened separate account, ‘Customer’s Trust deposit Account’ to pay in money received for goods not yet delivered, withdrawing the money only if goods were later delivered – so they could refund customers if goods not supplied (if company went into liquidation). - Held: trust had been created. - Paul v Constance: C separate from his wife + lived with P. A number of times C told P that the money was as much hers as his. o C died intestate + as he had not divorced his wife, wife was entitled to all of his estate.
    [Show full text]
  • Moffat's Trusts Law Text and Materials Seventh Edition
    Cambridge University Press 978-1-108-79644-6 — Moffat's Trusts Law 7th Edition Frontmatter More Information Moffat’s Trusts Law Text and Materials Seventh Edition Always the serious student’s choice for a Trusts Law textbook, the new seventh edition of Moffat’s Trusts Law once again provides a clear examination of the rules of Trusts, retaining its hallmark combination of a contextualised approach and a commercial focus. The impact of statutory developments and a wealth of new cases – including the Supreme Court and Privy Council decisions in Patel v. Mirza [2016] UKSC 42, PJS v. News Group Newspapers Ltd [2016] UKSC, Burnden Holdings v. Fielding [2018] UKSC 14, and Federal Republic of Brazil v. Durant [2015] UKPC 35 – is explored. A streamlining of the chapters on charitable Trusts, better to align the book with the typical Trusts Law course, helps students understand the new directions being taken in the areas of Trust Law and equitable remedies. Jonathan Garton is a professor of Law at the University of Warwick. His main research interests are in the law of Trusts, with a particular focus on charities. Rebecca Probert is a professor of Law at the University of Exeter. She has published widely on both modern family law and its history. Gerry Bean is a partner at DLA Piper, one of the largest global law firms, where he practices in corporate law and M&A. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-79644-6 — Moffat's Trusts Law 7th Edition Frontmatter More Information The Law in Context Series Editors: William Twining (University College London), Maksymilian Del Mar (Queen Mary, University of London) and Bronwen Morgan (University of New South Wales).
    [Show full text]
  • Equity & Trusts : the 3 Certainties; Formalities; Constitution
    Equity & Trusts : The 3 Certainties; Formalities; Constitution Structure Type of property (realty/personalty) Transferor’s title: legal or equitable or absolutely entitled. Type of disposition: o Gift: constitution only o Self-declaration of trust o Transfer of trust o [[could be will/testamentary Wills Act]] 3 Certainties Any formalities? (if involves moving equitable title): o applies to self-declaration trust; transfer of trust; and wills (even if gifts). o No formalities for gift [[though if testamentary must comply with Wills Act]]. If formalities not fulfilled, any exceptions: o Vandervell, Grey etc. Constitution requirements: Re legal title (none for self-declaration of trust) if not valid constitution, any exceptions to Milroy v Lord ? o Re Rose o Mascall v Mascall o Strong v Bird Conclusion: what happens to the property Type of property realty/personalty; chattel, shares; chose in action; land etc Transferor’s title legal or equitable or absolutely entitled. (intended) Type of disposition: Gift: need constitution only Self-declaration of trust: declaration only Transfer of trust: need declaration & constitution) Power of appointment Gift subject to condition precedent [[could be will/testamentary Wills Act]] The 3 Certainties Knight v Knight , an express trust needs 3 certainties: (1) Intention; (2) Subject matter; (3) Object 1 (1) Intention Re Kayford: whether in substance there is intention Imperative v precatory, Eg ‘In full confidence’, depends on context: o Look at words in context of whole document (Re Adams; Comiskey) o Do they suggest a command (Comiskey) or merely a hope (Re Adams). o Precatory: Re Adams & Kensington Vestry: ‘in full confidence that she will do what is right’, re disposal between his children in her lifetime or by her will; precatory, an expectation, only a moral obligation no intention to create trust.
    [Show full text]
  • The Three Certainties Required to Declare a Trust – Or Is It Four? “Distributional Certainty”
    Cambridge Law Journal, 79(2), July 2020, pp. 349–359 This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited. doi:10.1017/S0008197320000264 THE THREE CERTAINTIES REQUIRED TO DECLARE A TRUST – OR IS IT FOUR? “DISTRIBUTIONAL CERTAINTY” DAVID WILDE* ABSTRACT. This article argues certainty in trusts is better understood by recognising a fourth certainty: “distributional certainty”. Distributional certainty is required in private trusts that involve dividing the property between beneficiaries: their shares must be clear. Distributional uncer- tainty is not, as usually understood, merely an instance of uncertainty of property: it has differing consequences, special resolution techniques, and may explain “administrative unworkability” in discretionary trusts. Distributional certainty is not required in charitable trusts. But this is not, as usually understood, merely an instance of the rule that charitable trusts do not need certainty of objects: it is an independent proposition. KEYWORDS: Trusts, certainty, equity, administrative unworkability, charity. I. THE CERTAINTIES NEEDED TO CREATE A TRUST The “three certainties” required to declare an express private trust were fam- ously stated by Lord Langdale M.R. in Knight v Knight.1 The settlor must indicate with certainty: (1) intention – that a trust was intended; (2) subject matter – the property going into the trust; and (3) objects – the identity of the beneficiary or beneficiaries.2 The suggestion here is that exposition and understanding could be enhanced by recognising that many (but not all) private trusts require a fourth certainty: “distributional certainty”.
    [Show full text]
  • Front Matter
    Cambridge University Press 978-1-108-47308-8 — A Student's Guide to Equity and Trusts Judith Bray Frontmatter More Information A Student’s Guide to EQUITY AND TRUSTS This engaging introduction explores the key principles of equity and trusts law and offers students effective learning features. By covering the essentials of each topic, it ensures students have the foundations for successful fur- ther study. The law is made relevant to current practice through chapters that dei ne and explain key legal principles. Examples set the law in context and make the subject interesting and dynamic by showing how these rules apply in real life. Key points sections and summaries help students remember the cru- cial points of each topic, and practical exercises offer students the opportunity to apply the law. Exploring clearly and concisely the subject’s key principles, this should be every equity student’s i rst port of call. Judith Bray is Professor of Law at the University of Buckingham. She has taught property law and family law for many years, having previously quali- i ed as a barrister. She is the author of several student texts on land law and also a short casebook on equity and trusts. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-47308-8 — A Student's Guide to Equity and Trusts Judith Bray Frontmatter More Information © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-108-47308-8 — A Student's Guide to Equity and Trusts Judith Bray Frontmatter
    [Show full text]
  • Equity and Trusts Lawcards 2012-2013
    ROUTLEDGE REVISION Lawcards 2012–2013 Equity and Trusts Equity and Trusts 2012–2013 223653.indb3653.indb i 110/20/110/20/11 5:285:28 PMPM Eighth edition published 2012 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2012 Routledge All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice : Product or corporate names may be trademarks or registered trademarks, and are used only for identifi cation and explanation without intent to infringe. First edition published by Cavendish Publishing Limited 1997 Seventh edition published by Routledge 2010 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN: 978–0–415–68336–4 (pbk) ISBN: 978–0–203–29999–9 (ebk) Typeset in Rotis by Refi neCatch Limited, Bungay, Suffolk 23653.indb ii 10/20/11 5:28 PM Contents Table of Cases v Table of Statutes xxvii How to use this book xxxi 1 Equity and the nature and types of trust 1 2 Capacity and the three certainties 17 3 Statutory formalities 33 4 Constitution of a trust 51 5 Resulting trusts 69 6 Constructive trusts 87 7 Trusts of the family home 103 8 Charitable trusts 115 9 Non-charitable purpose trusts, trusts of imperfect obligation and unincorporated associations 141 10 Trustees and administration of the trusts 155 11 Breach of trust and remedies 189 12 Equitable remedies of injunction and specifi c performance 209 13 Putting it into practice .
    [Show full text]
  • Equity & Trusts Law Notes
    https://www.uninote.co.uk/vendor/kings-llb-student/ All rights reserved to the author. Equity & Trusts Law Notes Part 1 out of 2 [126 pages] Contents: Equity: Equitable Remedies, Breach of Confidence Intro to Trusts: Distinctions, Trusts and Powers The Three Certainties: Certainty of Intention, Certainty of Subject Matter, Certainty of Objects + Sample tutorial answers Trusts for a Purpose: Charitable Purpose Trusts, Private Purpose Trusts, Modern Discretionary Trusts The Beneficiary’s Interest Express Trusts: Formalities, Constitution, Express Trustees Termination and Variation Resulting Trusts + essay preparation 1 https://www.uninote.co.uk/vendor/kings-llb-student/ All rights reserved to the author. Equity Maitland (1909): Equity is the body of law that used to be administered by the court of Chancery but is now administered by courts that administer both common law and equity. Equity is defined in its historical terms. The Judicature Acts 1873 and 1875 fundamentally changed the structure of courts in England. Before the 19th century, there were many different courts, which then became reduced to only the High Court of Justice (one courts with jurisdiction over everything but had difference divisions to specialise in different things) and the Court of Appeal. The Supreme Court of Judicature Act 1873 said that the court can administer both law and equity, rather than split between the Queen’s Bench division and the courts of Chancery. This was copied throughout the common law world. The Senior Courts Act 1981 s 49 provided that wherever there is any conflict between common law and equity, “the rules of equity shall prevail”. This is what allowed equity to survive as a body of law.
    [Show full text]
  • 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
    [Show full text]
  • Equity and Trusts (LA3002) LLB Complete Notes
    3 CERTAINTIES Knight v Knight, Lord Langdale MR : To create a trust, there must be certainty of intention, subject matter, and object matter. 1. Intention to create a trust - Settlor intended to place the holder of the trust assets (trustee) under an enforceable obligation to use those assets for the benefit of another (beneficiary) Obligation binding in conscience alone : Imposition of a moral (non-legal) obligation is not sufficient ➢ McCormick v Grogan, Christian LJ : ‘The real question is, what did the settlor intend to be the sanction? Was it to be the authority of a court of justice, or the conscience of the devisee?’ - Re Vandervell’s Trusts (No. 2) ➢ Megarry J : ‘The mere existence of some unexpressed intention…does nothing, there must at least be some expression of that intention before it can effect any result.’ - Re Adams & Kensington Vestry ➢ Testator left estate to wife ‘in full confidence’ that she would do what was right as to the disposal between their children, either in her lifetime or by will ➢ Wife attempted to give some of the rights away outside her immediate family ➢ Held : Only a moral obligation, not a legal one. No intention to impose any legally enforceable obligation on her, instead left to her ‘conscience’. It is an absolute gift for the wife. - Lambe v Eames ➢ ‘at her disposal in any way she may think best’ ➢ Held : no trust. ➢ James LJ : ‘In hearing case after case cited, I could not help feeling that the officious kindness of the Court of Chancery in interposing trusts where in many cases the father of the family never meant to create trusts, must have been a very cruel kindness indeed.’ - Comiskey v Bowring-Hanburry ➢ ‘in full confidence that…she will devise it to one or more of my nieces as she may think fit’ ➢ Held : Intended to give those nieces some rights in that property under a trust.
    [Show full text]