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Certainties, Formalities And Constitution Notes

GDL Law Notes > GDL Equity and Trusts Notes

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E&T: Certainties, Formalities, Constitution Three Certainties

- 3 certainties (1. intention; 2. subject matter; 3. object) needed to enforce trust ([Langdale MR], Knight v Knight).

1. Certainty of Intention: imperative, not precatory wording needed. no technical language necessary ([Jessel MR], Richards v Delbridge; [Megarry J], Re Kayford). can be by conduct (Paul v Constance). NOT precatory language (Lambe v Eaves; e.g. Re Adams v Kensington Vestry: 'in full confidence she will do what is right'; Jones v Locke: cheque 'for baby' insufficient). imperative language (Comiskey v Bowring-Hanbury: 'in full confidence she will leave it to such of my nieces etc') context: whole doc. considered (Re Adams; Comiskey v Bowring-Hanbury: gift over in default ? certainty)
? if uncertain: absolute gift.

2. Certainty of subject matter a. property must be clearly defined: Palmer v Simmonds: 'bulk' ? no. Re Golay's WT: 'reasonable ? yes (as far as courts will go). b. segregation: tangible property: must be segregated - specif ically identif iable (Re London Wine; Re Goldcorp). intangible property: need not be segregated (Hunter v Moss, [Dillon LJ]). BUT CRITICISED: all proprietary rights need to be over specif ic property (Re Harvard Securities: [Neuberger J] criticised, followed Goldcorp for Australian shares; MacJordan Construction v Brookmount Erostin).

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