Equity and Trust exam notes written from textbooks and lectures for the Certainty of Subject Matter. Formatted to be memorised and contains all the necessary information to achieve a 2:1 or 1st on the exam.
-The entire property that is to be the subject of the trust must be described in such a way that
it becomes certain and ascertainable in order for the trustee to perform his duties and to be
enforced by the courts.
*-There are two types of property:
a) Existing Property: Any existing property may be the subject matter of a trust. This
includes property that has not yet become vested in the settlor and is awaiting the
determination of some other prior interest.
--i.e. The settlor is absolutely entitled to the property following the death of a life
tenant or where the settlor is entitled to the property which is to vest upon him
reaching a certain age.
b) Future Property: Refers to property that may vest in the future but of which there is no
certainty. Rather, it’s a mere expectation that some property may accrue. (i.e. future
royalties of a book or an acquired legacy under a living relatives’ will cannot,
therefore, be the subject matter of a trust).
*-In all cases the subject matter of a trust must be:
1) Identifiable.
2) Ascertained.
-If either of these features is absent, the trust must fail because it cannot be enforced.
Anthony v Donges [1998] (HC): A widow was left “such minimal part of the estate as she
might be entitled to…for maintenance purposes”.
Held (Legal Principle): There was certainty of subject matter.
*Palmer v Simmons (1854): I leave you “the bulk of my residuary estate”.
Held (Legal Principle): There was no certainty of subject matter for the trust. This was due to
the lack of certainty as to what formed the “bulk” of the residue. If the trust had stated “I
leave you the residue of my estate” then it would be sufficiently certain as to subject matter to
declare a trust because a residue is the remainder of the estate.
*Re Golay [1965] (WLR): Executors under a will were directed to allow a beneficiary “to
enjoy the use of one of my flats and receive a reasonable income from my other properties”.
Held (Legal Principle): The Court could use an objective standard to determine what
'reasonable income' meant preventing the gift from failing for uncertainty. Therefore, the
subject matter of a trust can be certain even if the quantity of property is to be assessed by a
trustee based on an objective standard.
1) Existing Property
*-A different approach is taken when determining whether a trust has been created with
tangible (physical) or intangible (non-physical) property.
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