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EXPRESS TRUST
(Knight v Knight 1840)
1. CERTAINITY OF INTENTION/WORDS-
- Where the word TRUST is NOT used, Can use other words that are strong
enough that the courts can infer a trust was intended.
2. Certainty of SUBJECT-MATTER –
- (Palmer)- Gift by testatrix of ‘bulk of her estate’ failure for lack of subject
matter
- Note- A gift of the residue on trust or otherwise will be valid and certain
1
- (Sprange)- T left sum for H directing at H’s death ‘any some he did not
require’ was to go to x,y,z, z.
2
- (McPhail v Doulton)- Testator set up dicretionair trust in favor of
employees, ex employees, relatives and dependents. 2 of the classes
are certain. After applying test sent back to CA and renamed (Re Baden
No2) as has to apply is or is not test and did satisy test. However 3
different reasons by 3 different judges.
(Re Tucks)- given money to trustee to distribute to anyone who was Jew. Not
easy question. Mentioned in trust that Rabi should resolve any uncertain
conceptuality.
(Re Coxen)- could be trustee himself, as long as sufficiently defined state of
affairs that they trustee were to form their opinion.
(Re Barlow)- made will giving instruction to trustee/executors that her
collection of paintings offered for sale below market price for her friends.
Question arose whether was sufficiently certain to be enforced. Giving her
friends right pre-emption (first refusal)
Re Brown Wilkinson- test as to whether that gift. Was not a trust case. Given
her friends right of pre-emption. Was the term friends conceptually certain?.
Stated that test was whether it was possible to say one or more persons that they
qualified as ‘friends of mine’. Not necessary to define what a friend is. This was
not a trust case. Friends are not business acquaintance, social, long or short
standing. Not authority for saying friend is conceptually certain. May be able to
resolve any conceptual uncertainty by saying in the case of any uncertainty of
who is or who is not a friend such nominate some such as wife, children’s. (Can
put to one side not trust case).
3
Quick Quiz do again
1. 3 CERTAINTIES. Has certainty of subject matter as 50 K it
is identifiable property. Certainty of object, as it is a
discretionary trust has to satisfy 2 factors. Must be
conceptually certain which it is. Not a big class and
beneficiary identifiable. Fixed interest trust no need to
write a list. Problem with certainty of intention by
wording. As the testator demonstrates clear intention that
he wanted to subject this property to a mandatory trust
obligation. Precatory words not strong enough.
4
RESULTING TRUST BACKFIXED INTEREST TRUST
BETWEEN THE 2.