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Certainties, Formalities and Constitution (Trust terminology + basic rules…

- - - - Imperative words
        
        Comiskey: "I hereby direct" was an intention to create a trust for the settlor's nieces.
      - Precatory words
        
        Lambe v Eames: "to dispose of in any way she thinks best best" was held to mean she could take the estate absolutely.
        
        Re Adams: "in full confidence she will do what is right" was an absolute gift.
      - You have the read the will in full to see if there was an intention to create a trust.
      - This can be done through conduct
        
        Paul v Constance: married man set up account with his lover, assured her the money was hers as well, they treated it as joint account, he died intestate + court held that there was an intention to create a trust through his actions.
    - - Sprange v Barnad - "what is left when he dies" was not certain - it must be certain at the time of making the trust.
      - Palmer v Simmonds: "bulk of my estate" was not sufficiently clear.
      - Boyce v Boyce: one daughter to choose house + other to get what remained, choosing one died before trust could come fully into force - not certain how should be divided.
      - Re Golay's: flat for life + reasonable income was sufficiently certain, as court could decide what was reasonable.
      - Tangible property
        
        Re London Wines: bottles had not been segregated, so no trust.
        
        Re Goldcorp: no gold bars had been segregated, so no trust.
      - Intangible property
        
        Hunter v Moss: 5% of shares was sufficiently certain
        
        Mac-Jordan Construction v Brooksmount Erostin: client was supposed to hold 3% of purchase price in separate account for builders. Did not do this and went insolvent. Builders tried to claim 3% of main account. Not able to, as there was no separate fund.
    - - Morice v Bishop of Durham: there must be a beneficiary, so trust can be enforced if necessary.
      - Fixed trusts
        
        IRC v Broadway Cottages Trust: must be possible to draw up a complete list of all the beneficiaries.
        
        For a class gift, it must be possible to identify all the members of the class
        
        Needs both conceptual (language used must be clear) and evidential (evidence enables trustees to find beneficiaries) certainty.
      - Discretionary trusts
        
        Re Gulbenkian's Settlement Trust: must be possible to say if any one individual is in or out.
        
        McPhail v Doulton: complete list approach does not apply to discretionary trusts. Court should try and give effect to settlor's intention.
        
        Re Baden's Trust Deeds (No2): regarding the word "relatives", Sachs + Megaw though descended from common ancestor, Stamp thought "next of kin".
        
        Sachs: it is for a claimant to prove that they are in the class. If they cannot, then they are out.
        
        Stamp: felt that trust would fail if someone came forward who could not be said to be part of the trust or not.
        
        Megaw: discretionary trust will be certain if a "substantial" number of people can be shown to be within the trust.
      - R v District Auditor, ex p, West Yorks MCC: a trust can fail if the class gets too big, as it would be practically unworkable.
        
        Re Manisty's Settlement : does not apply to powers, as donee has no obligation to survey the entire field.
- - - - Direct trustee to hold for a third party
        
        Grey v IRC
        
        Oral instruction to T to hold beneficial title for his grandchildren
        
        Followed with signed writing
        
        Oral was not valid as did not comply with s53(1)(c)
        
        Later writing was valid, b/c agreed by parties
        
        Only beneficial title moving
        
        Vandervell v IRC
        
        Oral instruction to T to transfer legal + equitable title to Royal College of Surgeons
        
        Instruction valid
        
        D/n't need to comply with 53(1)(c) as it was in effect collapsing the trust
        
        If point of s53(1)(c) is so T know who B are, when collapsing trust removes need for compliance
      - Self-declaration of trust
        
        Sheffield v Sheffield
        
        Subtrust is a new trust, so doesn't need to comply with s53(1)(c)
        
        Preferred approach
        
        B Green
        
        All subtrusts should have to comply, as they all involve at least some sort of disposition
      - Sell for valuable consideration
        
        Nellie v Wilson
        
        Can be enforced with specific performance
        
        Specific performance creates constructive trust for purchaser, which doesn't need to comply with s53(1)(c)