Normally the trustee is not bound to exercise it, and the court will not compel him to do so. The problem was that these bottles were not individually identifiable, and Oliver J held that: The Treasury Solicitor opposed the application and argued that the estate was acquired by the brother absolutely and may be taken by the Crown on a bona vacantia.
According to the release on October 18th, It might, however, be thought that this was a borderline case, since it is not easy to pinpoint a specific moment of declaration … The question … is whether in all the circumstances the use of those words on numerous occasions as between Mr Constance and the plaintiff constituted an express declaration of trust.
In Re Adams and Kensington Vestry  27 Ch D the court decided that on construction of the words used in the will, no trust was intended. In contrast, in Comiskey v Bowring-Hanbury  AC 84 the court concluded that on construction of the facts of the case, a trust was intended by the testator.
For fixed trusts subject to a condition, the test of certainty will vary depending on whether it is a condition subsequent or a condition precedent. And where the mass from which the numerical interest is to take effect is not itself ascertainable at the date of the declaration, such a conclusion becomes impossible.
Accordingly, if the transferor disposes of the property to the transferee and no trust is intended, the transferee takes it beneficially.
Thus, one fully paid-up plc share is the same as any other share of the same description. A sum of money, say 10, does not satisfy the requirement, rendering uncertainty.
Why suppose that the court would lend itself to whimsical execution?
The true antithesis I think is between the words such one or more of my nieces as she may think fit and the words equally divided between my surviving said nieces.
This means the settlor can demand the legal title back from the trustee and then create another, this time valid, trust. This is a classic situation in which a fiduciary relationship arises, and since it arises in respect of a specific fund it gives rise to a trust.
When the Court of Chancery was formed, it was believed that the solution allowing the executor to take the property beneficially was unacceptable.
If the trust is testamentary, the trustee will hold the property on trust for the benefit of those entitled to the residuary estate of the deceased. Seeing as this is the case, I thought it might be a good exercise to have a quick review of one of the basic tenants of trust law; the three certainties.
Certainties provide T with a degree of protection. Within express trusts this is a particularly complex area, because the test used to determine certainty varies between fixed trusts, mere powers and discretionary trusts.
It is unconscionable for a man to obtain money on terms as to its application and then disregard the terms on which he received it. Decided cases are used merely for illustrative purposes.In The Student Lawyer's latest article on trusts, Charlotte Burmby provides an overview of the three certainties (certainty of intention, certainty of subject matter, and certainty of objects) required for an express trust to be valid.
understand the three certainties test and appreciate its significance in the creation of an express trust comprehend, define and distinguish between linguistic (conceptual) and evidential uncertainty and administrative unworkability.
Trusts: The Three Certainties Charlotte Burmby. 22nd October 0 There are several types of trust and the most common is an express trust. Within this category of trusts are both fixed trusts and discretionary trusts.
A fixed trust is where the trustees have no choice as to who the beneficiaries are or how much they receive. The Three Certainties * Knight v. Knight (); + Lord Langdale - To be valid as a trust there must be: a) Certainty of intention to create a trust – Is a trust intended as a q.
b) Certainty of subject-matter – What property is to be subject to the trust and what are the beneficial interests? The Three Certainties Notes This is a sample of our (approximately) 14 page long The Three Certainties notes, which we sell as part of the Trusts and Equity Notes collection, a 1st package written at Oxford in that contains (approximately) pages of notes across 51 different documents.
The three certainties were explained by Lord Langdale MR in Knight v Knight. 7 A family tree setting out the relationships in this family is shown below at Figure .Download