Certainty of Intention

Did the settlor intend for it to be a gift? Or did they intend for it to create a trust?

If it is a gift, the person who receives it can do what they want with it.
If it is a trust, the person who receives it must hold on to the asset for the benefit of someone else.

Using the word 'trust' doesn't always mean a trust has been created.

Are the words used imperative or just precatory?
Wright v Atkyns [1823]- Imperative words impose an obligation.
Imperative words= Authoritative, directive, commanding words. The language imposes legal obligation whereas precatory only imposes a moral obligation giving the trustee a choice what to do w/ assets. They are not legally bound if precatory.

Precatory words= hope, desire or suggestion. Insufficient to establish intention.
Jones v Lock [1865] - Words used by father insufficient to show certainty of intention as he put cheque in 9 month old baby's hand and said "I give this to baby for himself" then took it back and put it away. He didn't create gift because he didn't leave cheque w/ son. Didn't create valid trust because he didn't declare himself as trustee. No certainty of intention so trust not valid.
Lamb v Eanes [1871] - "In any way she thinks best" is precatory language and not sufficient.
Re Adams & Kensington Vestry [1884] - "In full confidence" and "do what was right" are precatory words.
Using precatory words doesn't automatically result in failure of trust-
Comiskey v Bowring-Hanbury [1905] - Settlor intended for gift to his wife with gift over to niece in equal shares.
Re Steele's Will Trusts [1948] - Followed exact wording for creation of trust in previous case so intention was present.

	Erstellt von Niamh Smith vor mehr als 10 Jahre

3 certainties - creating an express trust

Equity - lecture 2