NB don’t need to know statute sections, case names ≠ necessarily in full
BASICS:
EXPRESS FIXED TRUST:
“£100 to Ts hold for A + B in equal shares’
T duties:
o Freme v Clement (hold + distribute according to terms)
B rights:
o enforce: Akers v Samba (due admin); Armitage v Nurse (min standard of
behaviour); Schmidt v Rosewood (trust docs)
o force T to distribute
o claim particular amount
court:
o Mettoy v Evans (guide T, exercise duty, appoint replacement T, enforce trust)
EXPRESS DISCRETIONARY TRUST:
‘£1m to Ts to appoint to grads of UCL in shares they in their absolute discretion shall
think fit’
T duties:
o Baden (No.1);*McPhail v Doulton (can’t ignore, must survey + identify class)
B/Object rights:
o *McPhail v Doulton (large class shouldn’t be admin unworkable)
o * Re Gulbenkian (class description too vague fails; NB court can interpret
intended meaning of poor drafting)
o Gartside v IRC (to be considered; enforce term if T distribute to someone ≠
class object even if ≠ B yet/never will be)
o Freme v Clement (receive share if Ts distribute)
o Saunders v Vautier (privilege to an amount; ≠ insist on particular amount)
court:
o Mettoy v Evans (protect structure: appoint replacement T, enforce trust,
order scheme of distribution - ask B how to split)
MERE POWER (NON-F):
‘£1m to Ts hold for UCL grads in such shares as Paula may think fit, in default of
appointment hold for A + B in equal shares’
mere power, given to non-T, default clause (S anticipate may not be exercised) + fixed
trust
T duties:
o no obligation
o Re Wright/Somes (if exercise must be within class of objects)
B/object rights
o Re Hay’s ST (≠ right considered only privilege; ≠ claim to any
amount/distribution)
o *Re Gulbenkian (if exercised only those in class of objects can enforce)
court:
o v limited, mainly prevent misapplication,
o Mettoy v Evans (court never exercise power)
o default to A+B in fixed trust
,BARE POWER (F):
“£1m to Ts to hold for UCL grads in shares they may think fit but in default hold for A
+ B in equal shares”
F power ‘may’ suggests discretion w/ default
T Duties:
o Re Hay’s ST (periodically consider whether/not exercise, observe objects,
consider appropriateness of appointment; srsly consider how to choose ≠
random; can include lots of objects even if not feasible to consider everyone)
court:
o Mettoy v Evans; *Mc Phail v Doulton(exceptionally exercise F power if
defualt)
o Turner v Turner (set aside T’s decision if ≠ comply w/ duty)
VALIDITY AND CREATION OF EXPRESS TRUSTS:
Knight v Knight - certainties (1) intention (2) subject matter (3) object
1-CERTAINTY OF INTENTION:
no intention to create a trust, mere gift (Re Adams)
imperative language ‘must’ ‘shall’ ‘will’ (Re Snowden)
power = permissive; trust = imperative (Re Weeke’s Settlement)
oral statement insufficient if S acts inconsistently e.g. give house to someone else
(Hilton v Cosnier)
ignore subjective, intend some legal arrangement even if S ≠ know what trust is
(Twinsectra v Yardley)
words/conduct ≠ inner thoughts (Challinor v Juliet Bellis)
no magic ‘trust’ arise even if ≠ use/know (Framjee)
‘wish’ ’desire’ ‘in her disposal/anyway she may think best’ insufficient (Lambe v
Earnes)
‘in full confidence ‘ ≠ trust but gift’ (Re Adams)
context/conduct enough ‘as much hers as mine’ (Paul v Constance)
(direct agent) separate assets = trust (Henry v Hammond; Kayford; Lewis)
mutual intention ≠ asset but limited purpose if not met goes back to B (Barclays
v Quistclose)
2-CERTAINTY OF SUBJECT MATTER (trust property):
property, £, things in action, land, present, future, vested or contingent interest
(Swift v Dairywise Farms)
not property cease to exist (Fortex v Macintosh)
need at time of taking effect no immediate trust for future property (Re
Ellenborough)
after-acquired property trust arise when in vendor’s hands (Pearson v Lehman)
‘whatever is left’ possible if requirement to segregate asset, if primary donee says
whatever is left = no intention to compel (Ottaway v Norman) PQ fave
‘the bulk’ too vague (Palmer v Simmonds)
‘reasonable income’ can have objective meaning look at previous living standard
(Re Golay’s Will Trust)
must segregate goods from the bulk (Re London Wine; Goldcorp Exchange)
, segregate £ from bulk (MacJordan Consruction)
shares valid despite no segregation if specify number of shares - will analogy
(Hunter v Moss)
SHARES:
o *Hunter v Moss - valid self declaration despite ≠ segregated (50/950)
c.f. London Wine - legal transfer of chattel shares diff bc equitable
transfer of title
valid if specify number of shares in will
Hayton: will and trust not same. intended: 1) trust of 950 for himself +
other as Bs 2) trust for specific 50 shares - should segregate
o Re Harvard Securities - agree w/ ^ outcome ≠ reasoning, trust valid for
intangible property (Re London - tangible) doesn’t explain why tho
o *Pearson v Lehman - agree w/ ^ outcome ≠ reasoning, form of co-ownership
all 950 on trust split equitable interest in proportionate shares for Bs
o North Wilkinson - affirms ^ so long as bulk + shares are certain
3-CERTAINTY OF OBJECT:
*Re Gulbenkian - need certainty of object
*McPhail v Doulton - so court can enforce T’s obligation in favour of intended Bs
ISSUES: if any missing fail for uncertainty
1-conceptual (meaning)
o precision of S’ language needs to be sufficiently clear to workout definition of
class of Bs
2-evidential
o available evidence to help identify members of class of members
3-ascertainably
o location/continued existence of Bs
o Trustee Act 1925/Re Benjamin - solution if court can’t find B, Ts (esp
discretionary) advertise intention to make appointment to a trust if no Bs
come forward before appointment T can go ahead w/out liability
4-administrative workability
o whether trust is practical for T
o size of intended class of objects
o Re Gulbenkian - clear description but difficult to apply to facts = admin
unworkable + invalid
FIXED TRUSTS:
General Rule:
McPhail v Doulton - fixed trust only valid if court can carry it out when
needed
o e.g. ‘£100 divided equally between my friends’
IRC v Broadway Cottages Trust - trust demands equal division, complete B list
test applies at time of distribution (not creation)
o if cant trust fails
o if can but no evidence trust fails
Re Sayer - trust for all employees and ex-employees conceptually certain
(failed bc evidentially uncertain)
BASICS:
EXPRESS FIXED TRUST:
“£100 to Ts hold for A + B in equal shares’
T duties:
o Freme v Clement (hold + distribute according to terms)
B rights:
o enforce: Akers v Samba (due admin); Armitage v Nurse (min standard of
behaviour); Schmidt v Rosewood (trust docs)
o force T to distribute
o claim particular amount
court:
o Mettoy v Evans (guide T, exercise duty, appoint replacement T, enforce trust)
EXPRESS DISCRETIONARY TRUST:
‘£1m to Ts to appoint to grads of UCL in shares they in their absolute discretion shall
think fit’
T duties:
o Baden (No.1);*McPhail v Doulton (can’t ignore, must survey + identify class)
B/Object rights:
o *McPhail v Doulton (large class shouldn’t be admin unworkable)
o * Re Gulbenkian (class description too vague fails; NB court can interpret
intended meaning of poor drafting)
o Gartside v IRC (to be considered; enforce term if T distribute to someone ≠
class object even if ≠ B yet/never will be)
o Freme v Clement (receive share if Ts distribute)
o Saunders v Vautier (privilege to an amount; ≠ insist on particular amount)
court:
o Mettoy v Evans (protect structure: appoint replacement T, enforce trust,
order scheme of distribution - ask B how to split)
MERE POWER (NON-F):
‘£1m to Ts hold for UCL grads in such shares as Paula may think fit, in default of
appointment hold for A + B in equal shares’
mere power, given to non-T, default clause (S anticipate may not be exercised) + fixed
trust
T duties:
o no obligation
o Re Wright/Somes (if exercise must be within class of objects)
B/object rights
o Re Hay’s ST (≠ right considered only privilege; ≠ claim to any
amount/distribution)
o *Re Gulbenkian (if exercised only those in class of objects can enforce)
court:
o v limited, mainly prevent misapplication,
o Mettoy v Evans (court never exercise power)
o default to A+B in fixed trust
,BARE POWER (F):
“£1m to Ts to hold for UCL grads in shares they may think fit but in default hold for A
+ B in equal shares”
F power ‘may’ suggests discretion w/ default
T Duties:
o Re Hay’s ST (periodically consider whether/not exercise, observe objects,
consider appropriateness of appointment; srsly consider how to choose ≠
random; can include lots of objects even if not feasible to consider everyone)
court:
o Mettoy v Evans; *Mc Phail v Doulton(exceptionally exercise F power if
defualt)
o Turner v Turner (set aside T’s decision if ≠ comply w/ duty)
VALIDITY AND CREATION OF EXPRESS TRUSTS:
Knight v Knight - certainties (1) intention (2) subject matter (3) object
1-CERTAINTY OF INTENTION:
no intention to create a trust, mere gift (Re Adams)
imperative language ‘must’ ‘shall’ ‘will’ (Re Snowden)
power = permissive; trust = imperative (Re Weeke’s Settlement)
oral statement insufficient if S acts inconsistently e.g. give house to someone else
(Hilton v Cosnier)
ignore subjective, intend some legal arrangement even if S ≠ know what trust is
(Twinsectra v Yardley)
words/conduct ≠ inner thoughts (Challinor v Juliet Bellis)
no magic ‘trust’ arise even if ≠ use/know (Framjee)
‘wish’ ’desire’ ‘in her disposal/anyway she may think best’ insufficient (Lambe v
Earnes)
‘in full confidence ‘ ≠ trust but gift’ (Re Adams)
context/conduct enough ‘as much hers as mine’ (Paul v Constance)
(direct agent) separate assets = trust (Henry v Hammond; Kayford; Lewis)
mutual intention ≠ asset but limited purpose if not met goes back to B (Barclays
v Quistclose)
2-CERTAINTY OF SUBJECT MATTER (trust property):
property, £, things in action, land, present, future, vested or contingent interest
(Swift v Dairywise Farms)
not property cease to exist (Fortex v Macintosh)
need at time of taking effect no immediate trust for future property (Re
Ellenborough)
after-acquired property trust arise when in vendor’s hands (Pearson v Lehman)
‘whatever is left’ possible if requirement to segregate asset, if primary donee says
whatever is left = no intention to compel (Ottaway v Norman) PQ fave
‘the bulk’ too vague (Palmer v Simmonds)
‘reasonable income’ can have objective meaning look at previous living standard
(Re Golay’s Will Trust)
must segregate goods from the bulk (Re London Wine; Goldcorp Exchange)
, segregate £ from bulk (MacJordan Consruction)
shares valid despite no segregation if specify number of shares - will analogy
(Hunter v Moss)
SHARES:
o *Hunter v Moss - valid self declaration despite ≠ segregated (50/950)
c.f. London Wine - legal transfer of chattel shares diff bc equitable
transfer of title
valid if specify number of shares in will
Hayton: will and trust not same. intended: 1) trust of 950 for himself +
other as Bs 2) trust for specific 50 shares - should segregate
o Re Harvard Securities - agree w/ ^ outcome ≠ reasoning, trust valid for
intangible property (Re London - tangible) doesn’t explain why tho
o *Pearson v Lehman - agree w/ ^ outcome ≠ reasoning, form of co-ownership
all 950 on trust split equitable interest in proportionate shares for Bs
o North Wilkinson - affirms ^ so long as bulk + shares are certain
3-CERTAINTY OF OBJECT:
*Re Gulbenkian - need certainty of object
*McPhail v Doulton - so court can enforce T’s obligation in favour of intended Bs
ISSUES: if any missing fail for uncertainty
1-conceptual (meaning)
o precision of S’ language needs to be sufficiently clear to workout definition of
class of Bs
2-evidential
o available evidence to help identify members of class of members
3-ascertainably
o location/continued existence of Bs
o Trustee Act 1925/Re Benjamin - solution if court can’t find B, Ts (esp
discretionary) advertise intention to make appointment to a trust if no Bs
come forward before appointment T can go ahead w/out liability
4-administrative workability
o whether trust is practical for T
o size of intended class of objects
o Re Gulbenkian - clear description but difficult to apply to facts = admin
unworkable + invalid
FIXED TRUSTS:
General Rule:
McPhail v Doulton - fixed trust only valid if court can carry it out when
needed
o e.g. ‘£100 divided equally between my friends’
IRC v Broadway Cottages Trust - trust demands equal division, complete B list
test applies at time of distribution (not creation)
o if cant trust fails
o if can but no evidence trust fails
Re Sayer - trust for all employees and ex-employees conceptually certain
(failed bc evidentially uncertain)
