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Certainties, Formalities & Constitution (Formalities (Disposition of…

- - - - Must use imperative language as opposed to precatory (c.f. Re Adams and the Kensington Vestry with Comiskey v Bowring-Hanbury)
        
        Words interpreted in own context as opposed to according to precedent (Re Hamilton)
      - In absence of written document must look at words/conduct of parties
        
        Look for a specific moment of declaration (Paul v Constance)
        
        Not essential however (Re Kayford)
  - - - Must be possible to identify intended trust property (Palmer v Simmonds)
        
        When property form part of a bulk distinguish between tangible and intangible
        
        Tangible
        
        Cannot identify individual items intended from bulk so subject matter is not certain (Re London Wine Co (Shippers) Ltd; Re Goldcorp Exchange Ltd)
        
        Intangible
        
        As long as items are identical can divide as intended (Hunter v Moss; Re Harvard Securities)
    - - Must be certain how property is to be divided between beneficiaries (Boyce v Boyce)
  - - - Greater degree of certainty required for fixed trust than discretionary trust
        
        Fixed trusts
        
        Complete list test (IRC v Broadway Cottages Trust)
        
        Requires both conceptual and evidential certainty
        
        Conceptual
        
        Refers to precision of language used by settlor to define the class
        
        Evidential
        
        Refers to extent to which evidence enables trustees to identify objects of trust
        
        Powers of appointment
        
        Is/is not test (Re Gulbenkian's Settlement Trusts)
        
        Discretionary trusts
        
        Complete list test rejected in McPhail v Doulton
        
        Lord Wilberforce said is/is not test applies
        
        Sachs LJ said conceptual difficulties can be resolved by evidence (Re Baden's Deed Trusts (No 2))
        
        Suggested it is for individual claimants to prove they are within the class
        
        Trusts can fail due to administrative unworkability if class is too large (R v District Auditor ex p West Yorkshire Metropolitan County Council)
        
        Practice has developed in most flexible trusts for trustees to have power to add anyone to class but an 'excepted class'
        
        Distinguish gifts subject to condition precedent
        
        No need for conceptual certainty (Re Barlow's WT following RE Allen)
        
        Valid if it is possible to say of one or more persons that they qualify even if this is difficult to ascertain for others
- - - - Must be evidenced in writing signed by settlor (s. 53(1)(b) LPA 1925)
        
        Non-compliance renders declaration unenforceable (not void)
        
        Thus possible to declare orally and then later provide written evidence
  - - - Must comply with s. 53(1)(c) (Grey v IRC)
    - - Need not comply with s. 53(1)(c) as is, in effect, equivalent to excercising Saunders v Vautier right followed by making an outright gift (Vandervell v IRC)
- - - - Endorsement on deed ineffective to assign a lease
      - Vesting property in one of many trustees was sufficient in Choithram v Pagarani
      - Exceptions
        
        Re Rose
        
        Once everything in transferor's power has been done equitable interest is considered to have passed
        
        Extension in Mascall v Mascall
        
        Transferor must only put matter beyond their own control
        
        Extension in Pennington v Waine
        
        Gift effective in equity if a stage is reached where it becomes unconscionable to recall the gift
        
        Fortuitous vesting (Strong v Bird)
        
        Becoming an executor can remedy a lack of constitution by the deceased
        
        Even if one of multiple executors (Re Stewart)
        
        Intention must have been for immediate gift (Re Freeland)
        
        Extended to administrator (Re James)
        
        Includes trust property (Re Ralli's Will Trusts)
        
        Donationes Mortis Causa
        
        Requirements (Cain v Moon)
        
        Gift made in contemplation of death believed to be imminent
        
        Gift is conditional on death
        
        There is delivery of property
        
        Keys to safe box containing deeds constructive delivery (Sen v Headly)
        
        Only valid if donor had insufficient time to deliver property in question through valid inter vivos transfer or make valid will
        
        Savings account can be object of DMC by handing over sessential indicia of title e.g. account book (Birch v Treasury Solicitor; Re Weston)
        
        EXCEPTION- cheque from donor to donee as cheque is revocable mandate which ends on death (Re Beaumont)
        
        Cheque to donor can be subject of DMC if delivered, even if not endorsed (Re Mead)
  - - - s. 1 LP(MP)A 1989
        
        s. 27 LRA 2002
        
        Title does not pass until after registration
  - - - Done by sending share certificates and stock transfer for to company's registrar
  - - - Notice in writing must be given to the debtor/other party