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. P brought an action arguing that C had declared an express trust over the money which would not form part of his estate. o Held: Use of those words on several occasions was sufficient to amount to a declaration of trust. BUT, isolated loose conversation will not suffice. - Jones v Lock: J returned from business trip. The nurse of J’s baby told him off for not bringing his son a gift. So, J produced a cheque + said ‘I give this to baby; it is for himself, and I am going to put it away for him, and will give him a great deal more along with it’. J died a few days later. o Held: he had not made an effective declaration of trust. o Lord Cranworth LC: ‘It would be very dangerous if loose conversation of this sort, in important transactions of this kind, should have the effect of declarations of trust’. - Gold v Hill: Mr Gilbert had separated from his wife + living with another woman + her children. He had not changed his will which left his estate to his wife. He was going on a business trip + took out life insurance nominating Mr Gold as beneficiary: ‘If anything happens to me you will sort things out – look after Carol and the kids. Don’t let that bitch (wife) get anything’. o Was this sufficiently certain? o Held: most likely interpretation = he intended that Gold hold the moneys as trustee for Carol for her to apply them for the use + benefit of herself + children. - Re Gulbenkian’s Settlements (Lord Upjohn): - “It is…the duty of the court by exercise of judicial knowledge and experience…, innate common sense and desire to make sense of the settlor’s or party’s expressed intentions however obscure and ambiguous the language…” Intention to impose mandatory obligation, rather than merely a moral obligation: - Re Snowden: S couldn’t decide how to leave the residue of her property between her nephews + nieces as she didn’t want it to be unfair. She left it to her brother saying that ‘he would know what to do’ + that he was perfectly aware of how she wished to distribute the money. When brother died, question = whether the gift of the residue was subject to a trust. o Held: no intention that brother should hold the property for benefit of nephews + nieces. o Megarry LJ: ‘There was no need to bind him by any legally enforceable trust; and I cannot see any real indication that she had any thought of doing this’. - McPhail v Doulton: Deed establishing a fund stated: ‘trustees shall apply the net income of the fund in making at their absolute discretion grants’ to the employees + ex-employees of a company, their relatives and dependents.’ o Held: mandatory nature of language (‘shall’) showed intention to create a trust + not a mere power. Recipients of the property were under an obligation to make grants but they had discretion to decide to whom they should be made. - R v Clowes: Investment company brochure: ‘All moneys received are held in a designated clients account + clients are the beneficial owners of all securities purchased on their behalf’. o Held: trust had arisen. Precatory words (expressing a wish/request) -Older cases: precatory words would automatically give rise to a trust. E.g. testator expressing his ‘desire’, ‘hope’, ‘wish’ or ‘confidence’ that it be used in a particular way. -This approach was rejected in 19th century. - Re Adams and Kensington Vestry: testator left property to wife ‘in full confidence that she would do what was right as to the disposal thereof between his children’. o Held: Precatory words alone were insufficient evidence of intention to create a trust. o Cotton LJ: ‘I think some of the older authorities went a deal too far…’ -Modern approach = precatory words do not automatically create a trust. Must look at context. - Re Steele’s Will Trusts: testatrix’s will: ‘I give my diamond necklace to my son to go and be held as an heirloom by him and by his eldest son on his decease and to go and descend to the eldest son…and so on…as far as the rules of law and equity will permit’. o The solicitor appeared to have copied this phrase from an older case. o Held: intention was evidenced not by precatory words but by the fact that there was an established precedent. -Sham intention (if no genuine intention to create a trust): - Midland Bank plc v Wyatt: W’s were joint legal owners of family home. They executed a declaration of trust in favour of Mrs W + their daughters, which was placed in a safe. Mr W then obtained credit to finance his business, secured by the interest in the house. Banks were unaware of the trust + its existence was only disclosed after the business had become insolvent. o Held: Declaration of trust was a sham (or a pretence) – so void and unenforceable. Consequence of a lack of certainty of intention? -If the words were used in conjunction with a transfer of property by will/inter vivos, then the recipient generally acquires the property free of trust. -If words were supposedly a declaration of trust by settlor, the settlor remains the outright owner. Certainty of Subject Matter -A trust can only exist in relation to specific property - Hemmens v Wilson Browne: Client instructed solicitor to draft a document giving C (client’s mistress), an immediately enforceable right to call at a certain date for a sum of £110,000 to enable her to buy a house for herself + daughter. After document was drafted + executed, solicitor told C that its effect was ‘akin to a trust’ but advised her to consult her own solicitors. Client refused to pay up. Had document created a trust over client’s general assets? o Held: no valid trust as there was no identifiable fund to which any trust could attach. - Palmer v Simmons: Testatrix attempted to create a trust of ‘the bulk of my residuary estate’. o Held: term ‘bulk’ = too uncertain. No valid trust. - Anthony v Donges: Husband made gift to wife by will of ‘such minimal part of my estate of whatsoever kind…she may be entitled to under English law for maintenance purposes’. o Held: Impossible to determine what she was entitled to. Gift = void for uncertainty of subject matter. - T Choithram International SA v Pagarini: P was seriously ill when he executed a trust deed establishing a philanthropic foundation appointing himself one of the trustees. Orally, he stated that he gave ‘all his wealth’ to the foundation. He added ‘all my balances with the company and my shares as well’. o Held: Clear that the deposit balances + company shares in the 4 defendant companies were sufficiently clearly identified (so didn’t matter whether ‘all my wealth’ was too uncertain). -The term ‘residue’ does not present a problem as it has a clear legal meaning – what is left of the estate after other bequests or testamentary gifts have been made. BULK V RESIDUE - Residue = remainder – this is certain - Bulk = uncertain - Re Golay’s Will Trusts: testator provided that a legatee was to receive a ‘reasonable income’ from the property. - Held: Testator intended by ‘reasonable income’ the yardstick which court would apply in quantifying the amount. So, direction is not defeated by uncertainty. - Boyce v Boyce: Testator had 2 houses. His executors were to convey whichever house his daughter Maria should choose to Maria, and the other house to the other daughter Charlotte. Maria died during the testator’s lifetime. - Held: M’s death made it impossible to ascertain subject matter of trust for C. Trust failed. -Tangible property in bulk - Re London Wine Co: Wine merchants with large stocks of wine in various warehouses. Customers would purchase wine as an investment. Contract of sale stipulated that the wine would become the customer’s property but would be stored by the company. - Customer’s purchase were entered into stock book + allocated a reference number. Company provided a certificate to customers stating the customers’ sole beneficial ownership of the wine they had purchased.