certainties - intention

case authorities for certainty of intention tests

Tito v Waddell (no 2)

Settlor doesn’t expressly have to use the word ‘trust’ for there to be an intention

Re Gulbenkian Settlement

law tries to make sense of the intention as far as to give the necessary consequence of an intention where ambiguous

Paul v Constance

money ‘as much as yours as it is mine’ supported by creating separate bank accounts

intention found

Re Adams v Kensington Vestry

precatory wording

‘in full confidence that [trustee] will do what is right [with the estate] as to the disposal thereof between my children’

held as gift with moral obligation

Comiskey v Bowring-Habury

holistic assessment looking to the document as a whole to construct an intention, facts in case established a trust despite precatory wording used

Knight v Knight @ 173

all three certainties (intention, subject matter, object) must be satisfied to create a valid trust

Jones v Lock 1865

family context

loose conversations with no conduct to support the purported trust will invalidate the intention

compare with Paul v Constance

R v Clowes (No 2)

commercial context

separate bank account could amount to intention through conduct

generally, courts reluctant to find a trust in these contexts where there isn’t an explicit intention Henry v Hammond 1913

Re Beaney 1978

settlor must have the capacity to make a trust: cannot be incapacitated or a child

Gill v Thind 2023

possible that courts give effect to settlor’s subjective intention and subsequent conduct where trust alleged to be declared orally

Marley v Rawlings 2014

testamentary wills

wills generally interpreted in the same way as contracts

@ 19: judge should ignore evidence of the testator’s intention and other extrinsic evidence except where s 21 Administration of Justice Act 1982

Midland Bank v Wyatt

innocent parties protected by estoppel where sham trust was found

JSC Mezhdunarodniy v Pugachev 2017

sham trusts

must be an intention to create a false/misleadubg appearance of a trust to deceive third parties, even where it wasn’t intended to be a sham

trust not initially created as a sham can’t be converted into one

Painter v Hutchinson 2007

in self-declared trusts (settlor as trustee), only need to consider settlor’s intentions to mislead

trust valid if trustee under the impression that a genuine trust exists

Shalson v Russo 2005

needs to be common intention between settlor and trustee for a trust to be a sham and rebut objective appearance of a valid trust