Lecture 2.1 - Moodle - equity and trust PDF

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equity and trust...

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Week 17

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CERTAINTY

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CERTAINTY • Knight v Knight (1840) 3 Beav 148 (Lord Langdale):

Ø “...the words were so used, that upon the whole, they ought to be construed as imperative.” Ø Ø “...the subject of the recommendation or wish be certain.” Ø Ø “the objects or persons intended to have the benefit...be also certain.”

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The Three Certainties 6

The Three Certainties: • Certainty of intention • • Certainty of subject matter • • Certainty of objects

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SIGNIFICANCE: • Settlor / testator •

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• Trustee • • Beneficiary • • Courts 8

‘The Three Certainties’: • Certainty of intention • • Certainty of subject matter • • Certainty of objects

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Certainty of intention • Paul v Constance [1977] 1 WLR 527 CA • • Jones v Lock (1865) LR Ch App 25 Lord Cranworth LC: “…I think it would be a very dangerous example if loose conversations of this sort, in important transactions of this kind, should have the effect of declarations of trust.”

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• Rowe v Prance [1999] 2 FLR 787 • • Duggan v Full Sutton Prison Governor [2004] 1 WLR 1010 • Precatory words: • Re Adams and Kensington Vestry (1884) 27 Ch D 394 “in full confidence that she will do what is right as to the disposal thereof between my children” • Comiskey v Bowring-Hanbury [1905] AC 84 “in full confidence that…at her death she will devise it to such

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one or more of my nieces as she may think fit” • Re Hamilton [1895] 2 Ch 370 11

‘The Three Certainties’: • Certainty of intention • • Certainty of subject matter • • Certainty of objects

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Certainty of subject matter a) The trust property • b) The beneficial interest(s) Why? - Beneficiary - Trustee - Court

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Certainty of objects • • To advance public (charitable) purposes • • To advance private purpose trusts (trusts of imperfect obligation – our ‘anomalous exceptions’) • • To benefit a person or persons – i.e. to benefit the BENEFICIARIES

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The ‘type’ of trust determines which test to use:

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Week 17 • Lecture 2.1 – The three certainties; Certainty of intention

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• Lecture 2.2 – Certainty of subject matter • • Lecture 2.3 – Certainty of objects •

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