LLB270 Study Guide - Final Guide: Testator, Settlor, Specific Performance
TRUSTS:
ESTABLISHMENT OF TRUSTS:
Inter vios:
Transfer – must fit within the Milroy v Lord arms
oMust do ‘everything that is necessary to be done’ to transfer the
property and make ‘settlement binding’ on him – COMPLETELY
CONSTITUTED
oIf not completely constituted – not enforceable unless specific
performance is available
Declaration – owner becomes the trustee (as well as settlor)
THREE CERTAINTIES:
1. Certainty of intention
Imperiative that the instrument state the property is to be held on
TRUST
Intention can be inferred – Korda v Australia Executor Trustees
2. Certainty of subject matter
Must be clearly identified
‘bulk of my estate’ has been held to be insufficient – Palmer v Simmunds
3. Certainty of object (beneficiaries)
Beneficiaries ensure the trust is met – Morice v Bishop of Durham
QUISTCLOSE TRUSTS:
Where loans are established for a purpose, and that purpose cannot be met, the
money is held on trust for the borrower – Barclays Bank Ltd v Quistclose
Borrower retains the beneficial interest in the money until it is used for the specified
purpose – Australian Conference Association v Mainline Constructions
SECRET TRUSTS:
ELEMENTS – Ledgerwood v Perpetual Trustee (1997)
INTENTION by testator that recipient holds on trust
COMMUNICATION of the intention by the TESTATOR TO THE RECIPIENT
ACCEPTANCE of the obligation of trust before the testator’s death
CHARITABLE TRUSTS:
MUST fit within the FOUR heads of the Preamble – Commissioners for Special
Purposes of Income Tax v Pemsel:
Relief of poverty
Advancement of education
Advancement of religion
Purposes beneficial to community & within the spirit of the Preamble
Must confer PUBLIC BENEFIT
oPublic – not determined by the number of potential beneficiaries, but
accessibility to the public
oBenefit – must be established
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Document Summary
Transfer must fit within the milroy v lord arms: must do everything that is necessary to be done" to transfer the property and make settlement binding" on him completely. Constituted: if not completely constituted not enforceable unless specific performance is available. Declaration owner becomes the trustee (as well as settlor) Imperiative that the instrument state the property is to be held on. Intention can be inferred korda v australia executor trustees: certainty of subject matter. Bulk of my estate" has been held to be insufficient palmer v simmunds: certainty of object (beneficiaries) Beneficiaries ensure the trust is met morice v bishop of durham. Where loans are established for a purpose, and that purpose cannot be met, the money is held on trust for the borrower barclays bank ltd v quistclose. Borrower retains the beneficial interest in the money until it is used for the specified purpose australian conference association v mainline constructions. Elements ledgerwood v perpetual trustee (1997)
