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Express private trusts (1.2), What is it and why do we need it? Subject…

- - - - Hunter v Moss [1994]:
        
        Moss declared that 50 of his 950 shares were to be held on trust for Hunter, but he did not identify which 50 shares
        
        CA surprisingly held that there was a valid trust because the shares were fungible (identical and interchangeable) and if this had been a testamentary trust, it would have been valid
        
        The decision had been heavily criticised and leaves with questions:
        
        Do we have separate rules for tangible and intangible property? Not according to the CA, but see Re Harvard Securities
        
        Should we have different rules for tangibel and intangible property?
    - - Trust property should be separated from other property to ensure its identifiable. If the trust property has not been separated, there is no trust
        
        Re London Wine Co [1986]:
        
        The customers' wine not segregated from the general stock, so the wine not identifiable so there could be no trust
        
        Re Goldcorp Exchange Ltd [1995]:
        
        Where the gold bars had not been segregated from the general stock, the gold bars were not identifiable so there could be no trust
- - - - Fixed trust with a CLASS disposition:
        
        Disposition is to a class of beneficiaries. They all share the property between them
        
        The beneficiaries interest can only be defined and calculated by reference to each other
        
        We need to establish how many beneficiaries are in the class before we can work out what any one beneficiary is entitled to individually and give effect to the disposition
        
        e.g. £100,000 to be divided equally between my grandchildren
      - Fixed trust with a INDIVIDUAL disposition:
        
        Very unhelpfully referred to elsewhere as a fixed trust subject to a condition precedent
        
        Disposition is for an individual beneficiary or for individual beneficiaries, they each get their own bit of property
        
        Each beneficiary's share is independent of each other
        
        e.g. £100,000 each for each of my grandchildren
- - - - If the donee is a fiduciary, and they hold the power in their fiduciary capacity = fiduciary power
        
        e.g. I leave my horses to my trustee, to distribute amongst my family in whatever way she sees fit - power given to a trustee who is a fiduciary = fiduciary power
      - If the donee is not a fiduciary they don't have fiduciary capacity, = non-fiduciary power
        
        e.g. I leave my horses to my sister, to distribute amongst my family in whatever way she sees fit - assuming the sister is not a fiduciary = non-fiduciary power
      - Further categorisation
        
        General - a power to appoint anyone in the world
        
        I leave my sword for my trustee, who may give it to whomever he likes
        
        Special - a power to appoint between a particular group of people
        
        I give my casks of beer to my trustees, who may appoint them if he likes to any one of my relatives
        
        Intermediate - a power to appoint to anyone except a particular group of people
        
        I leave all my money to my trustees, who may, if they think fit, share it between anyone except current employees of Cardiff University