12 May EXPLAIN THE DEVELOPMENT OF THE TESTS FOR CERTAINTY OF OBJECTS IN THE LAW OF TRUSTS.
Yuri Grbich, Baden: Awakening the Conceptually Moribund Trust (1974) 37(6) Modern Law Review 643 – 656.
Questions:
1. What are the “three certainties”?
2. What is the rationale for the “three certainties”?
3. In relation to certainty of intention, answer the following questions:
a) When the courts assess intention, what are they looking for?
b) It is often noted that the case of Lambe v Eames(1870) LR 6 Ch App 597 marked a change in the attitude of the judiciary to certainty of intention. Why do you think the judicial attitude changed?
c) Assess the contribution of the case of Paul v Constance to certainty of intention in express trusts. Compare the facts and outcome of Paul v Constance with the case of Jones v Lock. Do the cases compare favourably?
4. In relation to certainty of objects, answer the following questions:
a) Explain the development of the tests for certainty of objects in the law of trusts.
b) Explain the test for certainty of objects in fixed trusts. What is the case authority?
c) Explain the test for certainty of objects in discretionary trusts. There can be little doubt that the case of McPhail v Doulton made a dramatic change to the law. Do you think there was a policy reason behind the decision of the House of Lords in McPhail?
Past examination questions over the page
2008/2009 examination question:
“It is received wisdom that the objects of a trust must be defined with sufficient certainty or it will fail.” (IM Hardcastle, ‘Administrative unworkability – a reassessment of an abiding problem’ [1990] Conv 24, 24).
Critically evaluate this statement with particular reference to the development of the test of certainty of objects in discretionary trusts.
2009/2010 examination question:
Advise Amos as to the validity of the following dispositions contained in his will:
a) £20,000 on trust to my cousin, Bertrand, feeling fully assured that the money will be turned to the support of my sister, Christina;
b) £100,000 to my trustees such that they, in their absolute discretion, might divide the money between such of my nephews and nieces and old friends who should be in need of financial support;
c) My antiquarian law books should be made available to such of my friends who desire to take one at 40 per cent of its independently assessed value.
Workshop 2.Private Purpose Trusts and Unincorporated Associations
Cases to read:
– Re Recher’s Will Trusts[1972] Ch 526
– Re Denley ‘s Trust Deed [1968] Ch 373
Textbook reading:
– Davies & Virgo, Equity & Trusts, pp 110-117.
Article to read:
– Brian Green, ‘”Love’s Labours Lost”: A Note on Re Grant’s Will Trusts’ (1980) 43(4) MLR 459
Questions:
1. What is the “beneficiary principle”?
2. There are exceptions to the “beneficiary principle”, what are they?
3. The exceptions to the “beneficiary principle” known as private purpose trusts arose for what reason?
4. The categories of private purpose trusts are now closed. Why are such categories closed?
5. What is the status of those private purpose trusts?
6. How are these exceptions affected by the perpetuity rules?
7. Define the unincorporated association.
8. If we did not have unincorporated associations, would it have been necessary for the courts to create them?
9. What difficulties does the legal status of unincorporated associations present when gifts and legacies are left to them?
10. Explain the three categories of gift in Neville Estates v Madden.
11. In Artistic Upholstery Ltd v Art Forma (Furniture) Ltd [2001] FSR 311, Lawrence Collins, QC,described the ‘contract holding theory’ as the, “prevailing view”(para 33) of making a gift to an unincorporated association. Explain the contract holding theory, and why it has developed into the “prevailing view”.
12. On page 460 of the article by Green cited above, when referring to the contract holding theory, he states that, “For the donor, the price of validity is unenforceability”. In the contract holding theory context, explain the meaning of this comment.
13. Why can it be said that unincorporated associations frequently break the rules on formalities?
Past examination questions appear over the page
2012/2013 Resit examination question:
“No principle perhaps has greater sanction of authority behind it than the general proposition that a trust … not being a charitable trust, in order to be effective, must have ascertained or ascertainable beneficiaries.”
Discuss this statement by Lord Evershed M.R. in Re Endacott [1960] Ch 232 in relation to the beneficiary principle.
2012/2013 examination question:
Consider the validity and effect of the following dispositions contained in the will of Daniel who died earlier this year:
1. “I leave £5,000 on trust to my son Robert to look after Flynn, my ten year old giant Galapagos tortoise.”
2. “I leave £10,000 to the Galapagos Tortoise Club to further its purposes.” The Galapagos Tortoise Club is a non-charitable unincorporated association set up by the owners and fans of giant Galapagos tortoises. Daniel was one of the founder members of the Club and acted as the Club Treasurer for the last five years.
3. “I leave the residue of my estate on trust to my nephew Charles to establish a successful colony of Galapagos tortoises in Hertfordshire.”
Workshop 3.Constitution of Express Trusts
Case to read:
– T Choithram International SA v Pagarani and Others [2001] 2 All ER 492 (PC)
– Pennington v Waine [2002] EWCA Civ 227, [2002]1 WLR 2075
Textbook reading:
– Davies & Virgo, Equity & Trusts, Chapter 4
Article to read:
– Margaret Halliwell,Perfecting imperfect gifts and trusts: have we reached the end of the Chancellor’s foot? [2003] Conv 192
Questions:
1. What is the “constitution” of express trusts and gifts?
2. Explain the maxim equity will not assist a volunteer to perfect an imperfect gift? What is a volunteer?
3. There are exceptions to the maxim equity will not assist a volunteer…. what are those exceptions?
4. At each stage, explain the impact of each action both at law and in equity:
a) Fred tells Ginger he is going to give her some shares;
b) Fred executes a stock transfer form;
c) Fred places the completed stock transfer form in an envelope, writing “For Ginger” on the envelope;
d) Fred places the share certificate in the same envelope;
e) Fred hands the envelope to his accountant, Harry;
f) Harry checks the documentation for accuracy;
g) Harry sends the documentation to the company;
h) The company registers Ginger as the new owner, issuing a new share certificate.
5. Can you think of a rationale for the development of the exceptions?
6. Do you consider the cumulative contributions of Choithram and Pennington have had a dramatic impact on the law of constitution?
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