The three certainties

If an individual is holding property that is supposed to be on trust for another, then that property cannot be used by the liquidator or trustee in bankruptcy to settle their debts.

The three certainties

As these were the reasons for having the rule, they are the benchmark that the current interpretations must be measured against. A powerful example of how this can be problematic can be seen in a comparison of Re. Members of the public who contributed to the charitable website organisation entered into binding contractual relations with that organisation that imposed fiduciary obligations to transfer the funds to named charities thus creating trust obligations along the lines of Quistclose trusts in favour of the intended charities. In the former a resulting trust was held, in the latter it was treated as an outright gift. The whole purpose of what was done was to ensure that the moneys remained in the beneficial ownership of those who sent them, and a trust is the obvious means of achieving this. What is clear though is that the guiding principles have diminished in importance and are in danger of being a mere foundation for the more persuading arguments of pragmatism and sentiment. Lead to intricate legal arguments, wasting time and money. Key is to look what was intended, look at words and conduct of parties does it look like there was a trust in place? Pennington v Waine — court prepared to stretch Re Rose principle as long as you have done everything necessary for you to do to transfer the property, we can deem that property to have been transfer. The issue before the court was whether the benefit of the promotion and management agreements was capable of being the subject-matter of a trust, despite the express clause prohibiting the assignment of rights. This is distinguished from Re London Wine Co Shippers Ltd [] PCC , because Hunter v Moss was concerned with intangible property shares in a company , and Re London Wine was concerned with the appropriation of chattels and the passing of the legal title. It may well be that the testatrix did not intend the Crown to be the object of her testamentary bounty. More Trusts And Equity Samples. Intangible property, by its very nature, does not require segregation. The court ruled that an intention to create a trust could be inferred from these words.

Held: A valid trust had been created in favour of the relevant customers in accordance with the intention of the company and the arrangements effected. There is a principle also … that although the words are absolute in the first instance, you may find subsequently occurring words sufficiently strong to cut down the first apparent absolute interest to a life interest.

lambe v eames

And where the mass from which the numerical interest is to take effect is not itself ascertainable at the date of the declaration, such a conclusion becomes impossible. The applicable forms of uncertainty have been categorised as: Conceptual uncertainty.

Re coxen

A sum of money, say 10,, does not satisfy the requirement, rendering uncertainty. This is when the trustee has no discretion as to who the beneficiary is or the beneficial interest that will pass to the beneficiary. Following complaints, the Charity Commission initiated an inquiry and on 6 June an interim manager was appointed. What these cases demonstrate is that when answering the question of certain intention the courts have drifted far from the original deference to the actual words used, often to prop up a more practical or emotionally palatial result. The beneficiaries suffered a common misfortune for which they were not responsible and were required to be treated pari passu. In relation to commercial matters, there is a reluctance of the courts to find a trust arising from a commercial relationship. This textualist approach means that the words should be final. In contrast, in Comiskey v Bowring-Hanbury [] AC 84 the court concluded that on construction of the facts of the case, a trust was intended by the testator. The holder of a mere power is therefore free to do what he wants with the property he holds; if he fails to consider his exercise of the power, the courts may force him to do so. It is unconscionable for a man to obtain money on terms as to its application and then disregard the terms on which he received it.

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.

Held - took property free from any trust in favour of children.

three certainties revision notes

These shares were not individually identified, but Dillon LJ held that this was irrelevant because the shares were all of the same type and in the same company, and so it made no difference which particular shares were transferred.

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Trusts: The Three Certainties