,Introductory Lecture
What type of disposition is it?
Fixed Trust (no discretion as to who will benefit so conceptual and evidential
evidence required – if the division of the property is not specified, equity will divide it
in equal shares).
Small – scale discretionary trust (discretion to distribute to who they see fit but the
size of the class of objects here will be small. Distinguish Burrow and McPhail. Also
if it is clear that the testator wanted the beneficiaries to benefit equally even if there is
discretion then Broadway Cottages complete list test will be applied).
Large scale discretionary trust (“must distribute as they see fit” – discretion but the
size of the class of objects will be very large, McPhail v Doulton)
Fiduciary power (‘may distribute as they see fit’ – have to consider exercising it
because they are a fiduciary (trustees, solicitors) but don’t have to actually exercise it.
Mere power (a random person will be named and there will be no indication that they
are a fiduciary so they don’t even have to consider distribution).
Express VS Implied trusts?
Express
An express trust is created when a settlor or testator constitutes a trust with the
express or inferred intention of creating a trust, whether by declaration of trust or by
will, or by disposition of property to trustees or by will, in each case complying with
the applicable formalities required by law.
Express trusts may also be created by statute, or by the exercise of powers of
disposition over property.
Implied
A trust declared by a party not directly but by implication.
An implied trust arises in circumstances where it is necessary for an inference to be
drawn from the available admissible evidence that this was what the settlor intended.
The expression is also used to distinguish constructive and resulting trusts from
express trusts.
Express trusts = Sem A
Implied trusts = Sem B
Testamentary trusts = only come into effect by will which takes effect after the testator's
death (constituted at point of death).
,Inter vivos trust (lifetime trust, basically trustor makes trust while alive) = effective at
moment trust is declared because it is deemed to be effective immediately (constituted
immediately).
Certainty of Intention
Parkinson’s definition of the express trust = an express trust is an equitable obligation
binding a person (‘the trustee’) to deal with identifiable property to which he or she has legal
title for the benefit of others to whom he or she is in some way accountable.
Requirements for the creation of an express trust: Knight v Knight
1. Certainty of intention
o Is there an intention to set up a gift or a trust?
o Mandatory or precatory language?
o Conduct and context (can help decide)
2. Certainty of identifiable subject matter
3. Certainty of objects
The quest to establish certainty of intention is a question of fact.
It needs to be determined by the court by the process of objective assessment of the
evidence …
= does the evidence support the existence of a trust? The aim is not to search for the
founder’s subjective intentions.
Essential test =
whether the creator of the trust wanted somebody to hold property for the benefit of
another person, so that they are under a duty to do so.
This will be sufficient to create a trust, even though the creator of the trust did not
understand that this was the effect of what they were doing.
Different kinds of evidence available to us to establish whether a trust has been declared
or not:
In writing = Most of the time a founder will use documents, maybe a trust instrument
or a will, in order to set out a trust. (Trust instruments) In cases of ambiguity the
courts will use their common sense to make sense of the founders expressed
intentions, however obscure or ambiguous – if the evidence is there. (Wills) Used to
be the case that you couldn't construe or interpret a will using external evidence, you
just had to go on the terms of the will but since s.21 Administration of Justice Act
1982 where those testamentary provisions are ambiguous, then the courts can resort to
external evidence to interpret the will but, if the terms are clear they can’t.
Can also have orally declared trusts = problem is evidence with orally declared
trusts, need to ask does the evidence stack up to support the intention to create a trust.
Precatory language =
Words which do not manifest an intention to impose a trust on a trustee.
They are effectively requests.
Examples = ‘desire’ ‘wish’ ‘hope’
, Identify whether the following formulations are precatory or mandatory:
1. To Beth to use in any way, as she may think best, for the benefit of herself and her
family;
Precatory
2. To Hilda in full confidence that she will leave what is left to our daughter and, if she
does not do so, that she will leave the residue to charity;
Precatory
Re Adams & Kensington Vestry - agree
Cominsky v Bowring - Hanbury - disagree - in this case when the whole context was
considered and there was a valid trust.
3. To Lenny absolutely certain that he will respect my wishes;
Precatory
well depends on what wishes are, ambiguous, not so clear if there is an intention to
create a trust
4. To Mick in the confident hope that he will provide for Maureen;
Precatory
5. To Irene whom I trust to ensure that my wishes are performed;
Precatory
Tito v Waddel - just because you say trust doesn't mean there is a valid trust.
6. To Greg who shall hold the money for Dan
Mandatory
Case Case Facts Key Principle
Citation
Re Adams Provision: “in full confidence that she will do The words used “in full
and the what is right as to the disposal thereof between confidence” was not
Kensington my children, either in her lifetime or by will sufficient to manifest an
Vestry after her decease” intention to create a
[1884] 27 trust, merely guidance,
Ch D 394 The testator left property in his will to his wife did not make the widow
(widow). The widow thought that the provision a trustee – only moral
gave her an absolute gift of her deceased obligation at best.
husband’s property and she could leave it when
she died to whomever she wished. The widow Absolute gift here and
decided to leave some of the property to others, did not impose any legal
other than the children of the couple concerned. obligation on her to hold
The children were unhappy and so challenged the property on trust for
the validity of her will by arguing that the the children.
husband created a trust for the benefit of the
children, not an absolute gift so she couldn’t The provision did not
leave the property to anyone other than the evince the requisite
children. intention to create a
trust.
The court had to decide whether an absolute gift
or a trust flowed from the provision.
Cominsky v Provision: “absolutely in full confidence that The House of Lords held
Bowring – she [the widow] will make such use of [the that the testator intended
Hanbury property] as I would have made myself and that to make a bequest to his
[1905] AC at her death she will devise it to such one or wife with an ‘executory
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