What is certainty of intention and consequences of not having it?
Communicated at a time the settlor owned the property, and they must have intended the trust to take effect immediately.
Void for uncertainty of intention = property passes to the trustee.
What is certainty of subject matter and consequences of not having it?
Property must be in existence at the time of the creation of the trust.
Void for uncertainty of subject matter = property reverts to the settlor.
What is certainty of objects and consequences of not having it?
- Fixed trust = complete list test (conceptual and evidential certainty).
- Discretionary trust = given postulant test (conceptual certainty).
Void for uncertainty of objects = resulting trust in favour of the settlor presumed.
What are the two types of implied trust?
- Resulting trust = Interest in an express trust fails, an express trust fails to exhaust the beneficial interest, or a person makes a voluntary transfer/purchase in the name of another. The interest reverts to the settlor or their estate.
- Constructive trust = Equitable remedy to prevent unjust enrichment.
What are the formalities to create an express trust?
- Trusts of land must have 2-4 trustees.
- Post-6 April 2010 trusts must have the interest vest within the perpetuity period of 125 years.
- Noncharitable purpose trusts are limited to 21 years or rest of life + 21 years.
What are the requirements for transferring trust property?
- Land: Transfer deed and transferee must register.
- Shares: STF registered with company.
- Chattels: Intention and delivery.
- Legal title to bank account: Signed, written notice of transfer to the bank.
What is the every effort test?
The donor has done everything required of them to transfer the property and put the property outside of their control.
What is donatio mortis causa?
- Donor delivers the property to a donee in contemplation of imminent death;
- With the intention that it should be given to the donee if they die or returned if they do not, and they actually do; and
- They actually die.
Need not physically deliver a chattel.
What is the rule in Strong v Bird?
The donor dies before the transfer and the trustee becomes their PR, as long as there was an unbroken intention to give the gift.
When is proprietary estoppel applicable?
When a donee can prove, by reliance on assurance, they have acted to their detriment.
What is the Saunders v Vautier rule?
Allows for the termination of a trust by ALL the beneficiaries, if they all have an absolute interest and are of full age and sound mind.
What are the requirements for a charitable trust?
- For a charitable purpose.
- For public benefit.
- Its purpose is exclusively charitable.
What is the cy-pres doctrine?
If impossible to give the settlor’s intention effect, the court can redirect the trust to a purpose as near as possible to the charitable trust initially designated by the settlor.
Which private purpose trusts are valid?
- Denley trusts - actually for the benefit of ascertainable human beneficiaries.
- Maintenance of particular animals.
- Saying of private masses.
- Erection and maintenance of monuments and graves.
The latter three are valid but unenforceable, and may not continue beyond 21 years.
When is a resulting trust implied?
- Voluntary transfer or purchase of property in the name of another, unless the trustee proves the money was a gift, loan, or payment of a debt (unless from a husband or fiancé, father, or e.g. single mother). Can be rebutted by proof of intention.
- Arising on failure to exhaust the beneficial interest under an express trust.
When is a common intention constructive trust imposed when a claimant attempts to assert an equitable interest?
- The parties had an expressed or inferred common intention that C should have an equitable interest; and
- C relied to his detriment on the common intention.
