Equity: Introduction and Express Trusts

Burrogh v Philcox

If a testator shows general intention to benefit a class, but the specific selection fails, the court will honor the general intention by benefitting the whole class (Trust in Default of Appointment)

Re Keiran

Courts will strive to give effect to a trust wherever possible (Trust in Default of Appointment)

Knight v Knight

Establishes the three certainties for an express trust (certainty of intention, certainty of subject matter, and certainty of objects)

Comiskey v Bowring

Objective test for certainty of Intention

• Using precatory words like 'wish' or 'hope' does not suffice, unless the context indicates a clear intention to create a trust.

Re London Wine

Certainty of subject matter

• Items must be segregated if tangible

Re Goldcorp

Certainty of Subject Matter

• must be an identifiable portion amount (if tangible)

Hunter v Moss

Certainty of Subject Matter

• Intangible rights (such as shares) do not need to be segregated or strictly identified

Palmer v Simmons

Certainty of subject matter

• vague terms such as “bulk” are not sufficient

Re Golay

Certainty of Subject Matter

• If objectively measurable, trust may be valid

  • i.e. “reasonable income”

Re v Parker

Certainty of Objects

• Test for Fixed Trusts: the complete list test

Re Gulbenkian’s Settlement Trust

Certainty of Objects

• Test for Powers of Appointment|: Is or is not test

Re Parker ‘s Will

Certainty of Objects

• Test for Discretionary Trust

  • Ireland: Complete List Test

McPhail v Doulton

Certainty of Objects

• Test for Discretionary Trust

  • England: Is or Is not Test