Creation Of Express Trusts

Front 1

Who has the capacity to create an express trust? and in what provision is this found?

Back 1

Section 1(6) LPA 1925- a minor cannot hold a legal estate in land, and therefore cannot create an express trust.

Front 2

Which case identifies the three certainties, and what are they?

Back 2

Knight v Knight (1840)
In order for an express trust to be created, the settlor has to express 3 things with certainty:
1) certainty of intention;
2) certainty of subject matter;
3) certainty of object.

Front 3

Which case states that an express trust can be created without certain words, the question is whether a sufficient intention to create a trust has been manifested- intention can be presumed from context.

Back 3

Re Kayford Ltd [1975]

Front 4

In what case was the use of words ON SEVERAL OCCASIONS that the money was 'as much hers as his' sufficient to amount to an effective declaration of trust?

Back 4

Paul v Constance [1971]

Front 5

Which case states that loose conversation does not constitute a declaration of trust?

Back 5

Jones v Lock (1865)

Front 6

What was stated in Re Snowden?

Back 6

the key factor in the creation of express trusts is an intention to impose a 'mandatory obligation' as opposed to a mere 'moral obligation' to hold the property for the benefit of others.

Front 7

Which case stated that the mandatory nature of the word "shall" showed that the intention was to create a trust and not a mere power?

Back 7

McPhail v Doulton [1971]

Front 8

Which case states that precatory words such as 'desire' 'hope' 'wish' and 'confidence' do not automatically create a trust? It is necessary to look at the entire context.

Back 8

Re Adams and Kensington Vestry (1884)

Front 9

What is the result of lack of certainty of intention?

Back 9

If used in conjunction with a transfer of property, the recipient generally acquires the property free of any trust.
If the words were a declaration of trust, the settlor remains the outright owner.

Front 10

Which case states that a tryst for 'the bulk of my residuary estate' was too uncertain to fulfil the requirement of certainty of subject matter? It did not identify a definite part of the estate so no trust as created.

Back 10

Palmer v Simmonds (1852)

Front 11

Which case states that the term 'residue' is not too uncertain regarding subject matter, as it has a clear legal meaning- everything left over.

Back 11

T Chothram International SA v Paganini [2001].

Front 12

What was the dicta in Bryce v Bryce (1849)?

Back 12

the testator bequeathed his 2 houses on trust to his executors who were to convey whichever house his daughter maria should choose to her, and convey the other to charlotte.
Maria died before the testator, making the subject matter of the trust too uncertain as it was impossible to ascertain for charlotte.
Therefore, the trust failed.

Front 13

What was the dicta in Re London Wine Co (Shippers) Ltd (1986)?

Back 13

The case concerned TANGIBLE PROPERTY IN BULK.
-the customer's order was not segregated from the general stocks of wine until actual delivery.
There trust was invalid due to lack of certainty of subject matter- no customer was able to point to specific bottles of wine that were his or hers.

Front 14

Goldcorp Exchange Ltd [1995]

Back 14

The trust failed for lack of certainty of subject matter, in a similar way to Re London Wine- the gold bullion was not sufficiently segregated from the bulk, so not claimant was able to point to their own exact property.

Front 15

What was the dicta in Hunter v Moss [1993]?

Back 15

CONCERNED INTANGIBLE PROPERTY
There had been no appropriation/ segregation of the shares in favour of Mr Hunter.
-The HL held that provided all the shares were identical, it was unnecessary for them to be segregated, so the trust was valid.

Front 16

Re Harvard Securities [1997]

Back 16

The securities were not segregated so it was impossible to ascertain which belonged to each client.
Re London Wine and Re Goldcorp were distinguished on the basis that they concerned tangible property, and the court followed Hunter v Moss.

Front 17

Can a trust be created of future property?
Which case displays this?

Back 17

No. A trust cannot be created of future property i.e. an interest person expects to inherit/ future income.
Re Ellenborough [1903]- tried to create a trust for property which she might inherit on the death of her brother/ sister.
The trust failed for lack of certainty of subject matter.

Front 18

What are the 2 different types of certainty of objects?

Back 18

1) conceptual certainty (linguistic or semantic)
2) evidential certainty (problems with proof rather than definition)

Front 19

In which case did the term 'friends' fail the test for conceptual certainty, as it was not possible to say whether any particular individual was or was not a member of the class?

Back 19

Re Barlow's Will Trusts [1979]

Front 20

I which case were the terms 'relatives' and 'dependants' conceptually certain?

Back 20

Re Baden (No2) [1975]- 'relatives' could be interpreted as 'descendants of a common ancestor' and 'dependants' was sufficiently certain in the context.
A VALID TRUST WAS CREATED.

Front 21

Why did the trust fail for evidential uncertainty in Re Sayer?

Back 21

a trust in favour of employees and ex-employees failed for evidential uncertainty as it was impossible to keep an accurate list of such an extensive number of ex-employees.

Front 22

What is a fixed trust?

Back 22

where a trustee must know how many beneficiaries there are in order to perform the trust.

Front 23

Which case states that for a fixed trust there must be conceptual and evidential certainty in order to be able to draw up a 'fixed list?'

Back 23

Re Gulbenkein's Settlement [1970]

Front 24

Which case is the first authority on the 'fixed list' test?- for a fixed trust it must be possible to identify each member of a class of beneficiaries

Back 24

OT Computers Ltd v First National Trinity Finance [2003]

Front 25

What is a 'power of appointment?'

Back 25

the power to select who are beneficial recipients of trust property.
-do not have to exercise the power at all;
-are not required to consider every potential beneficiary.

Front 26

Which case displays the test for powers of appointment as the 'is or is not' test (individual ascertainability test)?

Back 26

Re Gulbenkian's Settlement [1970]

Front 27

Which case states that the 'fixed list' test applies to discretionary trusts?

Back 27

IRC Broadway Cottages [1955]

Front 28

Which case rejected the 'fixed list test' in the context of discretionary trusts, and instead applied the re gulbenkian 'individual ascertainability' test?

Back 28

MchPhail v Doulton [1971]

Front 29

Which has a higher threshold, the 'fixed list' or 'individual ascertainability' test?

Back 29

Fixed list.

Front 30

Which case states that the 'individual ascertainability test' only requires conceptual certainty, and not evidential certainty?

Back 30

Re Baden [1973]

Front 31

In the end, what test is required for discretionary trusts?

Back 31

the 'individual ascertainability test'- no requirement of evidential certainty.

Front 32

What was the dicta in Re Tuck's Settlement [1978]?

Back 32

the case concerned a gift that was conditional upon the recipient being of jewish faith and living with an approved wife.
-the problem of of conceptual uncertainty was overcome by the fact that the settlement provided that in the case of dispute or doubt, the decision of the chief rabbi was to be conclusive.

Front 33

What happens regarding the 'fixed list' test if it is no known whether or not the beneficiary is still alive?

Back 33

The trustees can apply to the court for a benjamin order.

Front 34

What was the dicta or Re Benjamin [1902]?

Back 34

Mr Benjamin's son was presumed to be dead in the absence of proof that he had survived his father.
A benjamin order protects trustees from an action for breach of trust if it subsequently turns out that the unascertained beneficiary is still alive.

Front 35

Which case defines the concept of administrative unworkability?

Back 35

McPhail v Doulton [1971]- when the definition of the beneficiaries is so wide as to not form "anything like a class" the trust will be administratively unworkable - VOID.

Front 36

What was stated in R v District ex p West Yorkshire Metropolitan CC [1986]?

Back 36

a trust for 'the inhabitants of west yorkshire' (2.5 million potential beneficiaries) was administratively unworkable.

Front 37

Which case states that a trust to benefit the 'residents of greater london' is capricious?

Back 37

Re Manisty's Settlement [1974]

Front 38

Under what circumstance would a trust for the 'residents of greater london not be capricious? and what case states this?

Back 38

If the donor were the former chairman of the greater london council- there would be a discernible link with the settlor.
Re Hay's Settlement.

Front 39

What are 3 specific public policy limitations to express trusts?

Back 39

1)conditions against alienation are void
2) conditions completely restraining freedom to marry are void.
3)conditions encouraging divorce or separation are void.

Front 40

what is the rule in sanders and vautier?

Back 40

where a group of trustees hold all of the trust property and are of majority age and of sound mind, they can bring the trust to an end immediately.

-if x divests 900 shares in y and 50 shares in out of 950 shares then he will have divested al beneficial interest and y and z can jointly call for the shares between them.