"Certainty of intention" means that it must be clear that the donor or testator wishes to create a trust; this is not dependent on any particular language used, and a trust can be created without the word "trust" being used, or even the donor knowing he is creating a trust.
What happens if there is no certainty of intention?
If there is insufficient certainty of intention then the gift takes effect as an absolute gift and no trust will be held to exist. 2. there must be certainty as to the extent of the beneficial interest of each beneficiary.
What is the certainty of objects?
What is certainty of objects? The objects of a trust are the people who benefit from it (beneficiaries). Certainty of objects is one of the three 'certainties' that need to be present for a private express trust to be valid (Knight v Knight (1840).
What are the three 3 certainties to keep in mind when creating an express trust?
For an express trust to be valid there has to be three certainties. These are certainty of intention, certainty of subject matter, and certainty of objects. Without these certainties, an express trust will not be valid. The purpose of these certainties is to ensure the trust is properly controlled and enforced.
What is conceptual certainty?
test requires conceptual certainty: the description of the class must be a clear concept (for. practical purposes, at least).27 Re Baden (No 2) discussed whether the law also requires. evidential certainty: evidence available to apply that concept. There might sometimes be a clear. concept, but a lack of evidence.
Why is certainty of intention required?
The certainty of intention is satisfied if there is sufficient evidence to show that the settlor or testator clearly intended to create a trust. If the word 'trust' is used, it will normally be a strong indicator that a trust was intended. to impose an obligation in the nature of a trust.
Why is certainty of subject matter important?
The certainty of subject matter is the requirement that the trust property left to the beneficiary must be easily identifiable, along with the interests gained by the beneficiary. The trust is likely to fail if the property left on trust is unidentifiable or uncertain.
What are the three certainties of a valid trust?
In order to establish a trust, three elements are necessary: first, there must be a manifestation of intent to create a trust by the settler; second, there must be property that is held by the trustee (the trust “corpus” or trust “res”); and, third, there must be an identified beneficiary or charitable public purpose ...
Do gifts have to satisfy the three certainties?
For there to be a valid trust for Telford's gifts three certainties must be satisfied as held: in the case of Knight v Knight (1840), the three certainties were identified as certainty of intention, certainty of subject matter and certainty of objects.
What makes a trust void?
Some of the most common reasons trusts are invalid include: Legal formalities were not followed when executing the trust instrument. The trust was created or modified through forgery or another type of fraud. The trust maker was not mentally competent when they created or modified the trust.
How do you know if a trust is fixed?
The test for fixed trusts is that the trustees must be able to give a complete list of the beneficiaries, as laid down in IRC v Broadway Cottages. If there are any potential beneficiaries who the trustees are not certain of, or the trustees cannot compile a complete list, the trust is void for uncertainty.
What are the certainties to create a trust?
Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust-property, and (unless the trust is declared by ...
Why have the courts said that certainty is necessary for a valid trust?
Certainty of Subject Matter It must be certain what property is to be subject to the trusts and what part or share of the property each beneficiary is entitled to since the trustee is to know what property he is meant to have in his control in the interests of the beneficiary.
What is an example of a certainty?
Examples of certainty in a Sentence We cannot predict the outcome with absolute certainty. There was no certainty that the package would arrive in time. Her certainty about these complex moral issues is surprising.
What are the different types of certainty?
There are three different types of certainty: 1) opinion; 2) belief; and 3) conviction.
How do you get a certainty?
Faith is also a feeling of certainty that something you believe to be true, really is....Three Ways to Build a Sense of Certainty: Question and change existing beliefs: evaluate whether your existing beliefs serve you. ... Seek out new references. ... Be curious: the adage “same old; same old” does not create certainty.
What is certainty question?
The philosophical question of whether one can ever be truly certain about anything has been widely debated for centuries. Many proponents of philosophical skepticism deny that certainty is possible, or claim that it is only possible in a priori domains such as logic or mathematics.
Why was a trust created?
So a trust was created because, having expressed that the property would be dealt with in full confidence (and thus looking like a moral obligation), the settlor went on to say that he directs that the property should be held on trust → so this showed there was not just a moral obligation.
How to establish a trust in a trust?
2) The trust property must be sufficiently segregated from other property so that the trust fund is certain . 3) The people who are to benefit from the trust must also be identified with sufficient certainty.
Why is the phrase "not a trust" not used?
This phrase would not create a trust because the first part is an absolute gift and the second part is an attempt to dispose of the remainder of the property – i.e. to dispose of the property given to the immediate beneficiary under the will dies.
Can a trust be used in full confidence?
The use of words which impose a request on the owner to use the property for the benefit of another will not suffice to form a trust. The use of the phrase ‘in full confidence’ has two main cases: in one case it was held there was a trust and in the other case it was held to be a gift.
Can a declaration of trust be a sham?
Shams and Frauds. ⇒ In some circumstances, an express declaration of trust may not form a trust, if the transaction is a sham or fraud. When a purported trust is in fact a sham intended to achieve some ulterior purpose then that trust will not be valid.
CERTAINTY OF INTENSION
This essay will advise Edward, Susanna, Tebbs and Tomlin of their legal position in respect of the facts of the case. In doing so, it will be established whether there has been validly executed trusts so as to ascertain whether they are effective and capable of being effectuated.
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Why should shares be identified for certainty?
Nevertheless it was also argued that; “Hunter v Moss should not be followed: there is no sound reasoning for distinguishing trusts of goods from trusts of intangibles”. Thus, it is difficult to determine what reasoning is more adequate, yet it is clear that the shares in this case will be capable of being identified because of the difficulty and unfairness it would produce if it were to not otherwise do so.
Is there certainty of intention in Susanna?
As such, it seems that certainty of intention cannot in fact be established in regards to the painting.
Did Simon create a trust?
It does appear that Simon intended to create a trust in respect of his cottage ‘Pendrells’ since he legally transferred it to Tebbs and Tomlin which demonstrates a clear intention and he contacted them in October to inform them to hold it on trust for Anna and Michael.
Is there certainty of objects in the IRC v Broadway Cottages?
Still, it must be shown that there is also certainty of objects as shown in IRC v Broadway Cottages [1955] Ch 20, 30 per Jenkins LJ. It does appear that there is certainty of objects in regards to the cottage and the painting since Simon told Tebbs and Tomlin that it was to be Anna and Michael for life with remainder to any children that they might have. What’s more, there is also certainty of objects in regards to the shares since Ben and Celia were to acquire them when they reach the age of 18. Therefore, as in Re Gulbenkian [1968] Ch 126 “for a trust to be valid the trustees must be able to say of any postulant that a person was either within the class of beneficiaries or was not.” Therefore, because of the fact that it is uncertain how many, if any, children Anne and Michael may have, the requirement of certainty of objects will still be capable of being identified since it is clear that there come within a certain class. Therefore, it seems that the three certainties are capable of being identified which means that the trust will be deemed valid and effective.
Why was a trust created?
So a trust was created because, having expressed that the property would be dealt with in full confidence (and thus looking like a moral obligation), the settlor went on to say that he directs that the property should be held on trust → so this showed there was not just a moral obligation.
What did the testator say about the bungalow?
Facts: The testator made a homemade will and he said: “The bungalow I leave in trust for my wife. On her death the Bungalow is to be sold and cash raised is to be equally divided between my children.” → this created a trust and not an absolute gift for his wife as he used the words “in trust”.
Which act did not apply to bequests?
Held: The court held that the wording of the bequest created an express trust, not a gift with a provision for the remainder, so s.22 of the Administration of Justice Act 1982 did not apply.
Did Wyatt tell the beneficiaries of his estate?
Facts: Mr Wyatt created express trust of family home, making himself trustee for his wife and children. However, he did not tell the beneficiaries, and continued to use the property as his own.
Did Wyatt create a trust over a cheque for the benefit of the baby?
AN issue arose as to whether a trust was created over the cheque for the benefit of the baby. Facts: Mr Wyatt created express trust of family home, making himself trustee for his wife and children. However, he did not tell the beneficiaries, and continued to use the property as his own.
What are the two elements of certainty of subject matter?
There are two elements to certainty of subject-matter:1) It must be clear what property is held on trust; and2) The beneficial interests of the cestuis que trust must be certain and clear.
What is the subject matter of a trust?
The asset which is to be the subject matter of the trust must exist. The trust must fail if the defendant fails to constitute the fund to which the trust was supposed to attach.
What do Ts need to know about trust?
Ts must know what their obligations are under the trust. The settlor cannot put the T under a duty to do something that is too vague to be legally enforceable or that is practically unworkable, given the nature of the trustee’s duties and their liability for breach. Certainties provide T with a degree of protection.
What property is held on trust?
There can be a trust of almost anything: chattels, a chose in action, a right or obligation under a contract, land or money.
Do gifts subject to condition precedent require the same degree of conceptual certainty?
Gifts subject to condition precedent do not require the same degree of conceptual certainty.
Is Hunter v Moss invalid?
Reality: Trusts like Hunter v Moss will not be attacked for being invalid as they are much too common and millions of pounds of funds depend upon their validity.
Is trust workable?
Trust was workable. Dillon J distinguished Re London Wine Co. on the basis that, unlike cases of wine or other tangible property, these shares were indistinguishable from one another. They all carried similar rights to vote at company’s meetings etc. Hence no separation was required as holding any 50 shares would achieve the same thing.
