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*essential ingredients of a trust - Coggle Diagram
*essential ingredients of a trust
First, is the intention the settlor's (person who declared the trust) had the intention to create a trust TOC 7, Notes 30
Comes down to the words and conduct, the word "TRUST" is suggested but not required TOC 8, Notes 31
Ong v Ping [2017]: the Court of Appeal held that the correspondence mentioned above sufficiently identified the title to the house, even though the settlor did not complete the deed TOC 8, Notes 31
T Choithram Int SA v Pagarani [2000]: • The deceased later solemnly declared that he gave all his wealth to the ‘foundation’, but no trustees were ever made. The court found the words used were words of gift to the foundation TOC 9, Notes 32
Paul v Constance [1976]: a trust was created through the words ‘the money in the bank is as much yours as it is mine’ TOC 8, Notes 31
Second, Identifying the trust property: There can be no trust until I have identified its items TOC 8, Notes 32
Hunter v Moss [1993]: Moss, made a voluntary (i.e. gratuitous) declaration that he held 5 per cent of the issued share capital of Moss Electical Ltd (MEL) on trust for the claimant TOC 8, Notes 33
Court of Appeal HELD it was not necessary for Moss to specify the particular share numbers TOC 9, Notes 33
The word bulk may not be specific enough
Yet, in Re Golay’s WT [1965], the court was able to determine what was "reasonable income" by reference to objective considerations TOC 9, Notes 34
Uncertainty? Then the case will depend on the facts. The thinking here is that uncertainty questions the intention create a trust in the first place TOC 9, Notes 34
Third, • A non-charitable trust must have beneficiaries.TOC 9, Notes 34
• A trust must have beneficiaries, unless it is for a charitable purpose or for one of the anomalous non-charitable purposes which are permitted in English law TOC 9, Notes 34
Re Endacott [1960]: A trust failed because no beneficiaries were identified. Lord Evershed MR Said: • A trust having ascertained or ascertainable beneficiaries has great authority behind it TOC 10, Notes 35
problem of uncertainty only arises where the settlor uses a generic term to describe the class (for example, my children, my relatives or my friends) TOC 10, Notes 35
Certainty of beneficiary’s interests: it may be that the settlor has not identified the shares in which the beneficiaries are entitled under the trust Toc 11, Notes 37
In a discretionary trust this is not an issue, since that will be determined by the trustees themselves. Can be an issue for a fixed trust. Boyce v Boyce [1849]: One beneficiary was given the task of allocating property between the others but died before doing so TOC 11, Notes 37
Perpetuity: the rule against perpetuities prevents settlors creating perpetual trusts. At some point, beneficiaries must be free to wind up the trust and call for a transfer of the property to them TOC 12, Notes 37-38
The rule concerning trusts of land
provides that declarations of trust with respect to land must be ‘manifested and proved’ by some writing signed by the person able to declare the trust
S.7 of the Statue of Frauds Section 7 was re-enacted as s.53(1)(b) of the LPA 1925 as follows: This policy states “a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will.” TOC 12, Notes 38
Oral declaration of trust can be value but the claimant bears the burden of proot TOC 12, Notes 39