Scribd Logo
Upload

Welcome to Scribd!

  • 30 views

    Certainty of Intention

    Uploaded by

    Jeremy Liew
    - For a valid express trust to exist, there must be certainty of intention by the settlor to create a trust. This can be shown through imperative words creating a mandatory obligation or inferred from the circumstances and conduct of the parties. - Precatory words suggesting a hope or desire rather than intention do not create a valid trust, unless other evidence suggests the settlor intended to create one. - Even without imperative words, a trust may still be inferred from the settlor's words and conduct over time or the circumstances of the case. - A purported trust will be considered a "sham trust" and invalid if the expressed intention was demonstrated to be false and not genuinely held by the settlor.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd

    Certainty of Intention

    Uploaded by

    Jeremy Liew
    30 views3 pages
    - For a valid express trust to exist, there must be certainty of intention by the settlor to create a trust. This can be shown through imperative words creating a mandatory obligation or inferred from the circumstances and conduct of the parties. - Precatory words suggesting a hope or desire rather than intention do not create a valid trust, unless other evidence suggests the settlor intended to create one. - Even without imperative words, a trust may still be inferred from the settlor's words and conduct over time or the circumstances of the case. - A purported trust will be considered a "sham trust" and invalid if the expressed intention was demonstrated to be false and not genuinely held by the settlor.

    Original Title

    Certainty of Intention (1)

    Copyright

    © © All Rights Reserved

    Available Formats

    DOCX, PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    - For a valid express trust to exist, there must be certainty of intention by the settlor to create a trust. This can be shown through imperative words creating a mandatory obligation or inferred from the circumstances and conduct of the parties. - Precatory words suggesting a hope or desire rather than intention do not create a valid trust, unless other evidence suggests the settlor intended to create one. - Even without imperative words, a trust may still be inferred from the settlor's words and conduct over time or the circumstances of the case. - A purported trust will be considered a "sham trust" and invalid if the expressed intention was demonstrated to be false and not genuinely held by the settlor.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    30 views3 pages

    Certainty of Intention

    Uploaded by

    Jeremy Liew
    - For a valid express trust to exist, there must be certainty of intention by the settlor to create a trust. This can be shown through imperative words creating a mandatory obligation or inferred from the circumstances and conduct of the parties. - Precatory words suggesting a hope or desire rather than intention do not create a valid trust, unless other evidence suggests the settlor intended to create one. - Even without imperative words, a trust may still be inferred from the settlor's words and conduct over time or the circumstances of the case. - A purported trust will be considered a "sham trust" and invalid if the expressed intention was demonstrated to be false and not genuinely held by the settlor.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    You are on page 1of 3

    Tips

    - Look at the words used


    - Are they precatory or imperative (mandatory)
    - Words should be construed with the circumstances
    - Deduce whether there is an intention

    CERTAINTY OF INTENTION - Knight v Knight

    - If certainty of intention fails, but legal title of the property has been transferred:
    regarded as an absolute gift

    EXPRESS DECLARATION of TRUST


    - Can be express
    - Inferred form conduct of parties & surrounding circumstances

    Lim Eow Thoon v Lim Keng Chuan [1965] - No technical expressions are necessary for
    the creation of an express trust.

    Test: Whether there is a clear intention on the part of the settlor that certain property is to be
    held by another (or himself) on trust for the benefit of a third party (or himself and one or
    more third parties)

    Words used - in trust for X


    - If such words are used: conclusive that there is certainty of intention

    ● Kishabai v Jaikishan [1981] - “In trust for [J], nephew of the Assured” shows a
    CLEAR INTENTION to create a trust

    Imperative Words = certainty of Intention


    - Authoritative command, direction to trustee, mandatory legal obligation
    - Such words will give rise to certainty of intention
    - Exception: if the trust is a sham

    ● Wright v Atkins ( 1823 ) - “in the fullest confidence” are imperative words. Court
    found there was certainty of intention
    - Note: this case is outdated. Later cases suggest such words “in the fullest
    confidence” are not imperative

    Precatory Words = no intention


    - Words of hope and desire
    - Examples: “in the hope that”, “I would like that”, “I desire that”, “I feel confident that”
    - Precatory words insufficient to show intention to create a trust
    - Note: even if precatory words are used, the intention to create a trust may be
    deduced from the conduct of the settlor/testator and other surrounding
    circumstances of a case.
    ● Lamb v Eames (1871) - “in any wy she may think best”
    ● Re Adams and the Kensingtion Vestry (1884) - “in full confidence”
    ● Hsu Yik Chai v Hsu Yaw Thang (1982) - “wish that”, “to assist them”: no valid trust
    ● ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] - will hold the
    right to receive such payments as a trust fund

    Contrast with: Comiskey v Bowring - Hanbury [1905] - “in full confidence” are precatory,
    but the court construed the other terms of the will to conclude that the testator intended to
    create a trust (the will also provided the words “I hereby direct” - imperative words). By
    inference of the whole provisions of the will - there was an intention to create a trust

    Inferred intention

    - An intention to create a trust may be inferred even if there are no imperative words
    used
    - court’s objective interpretation of the parties’ words and conduct, and the
    circumstances of the case, and not the parties’ subjective intentions

    Jones v Lock (1865) - ‘I give this to baby for himself’ in his wife’s (W) presence. He then
    took back the cheque, and put it away, as W was afraid that the baby might tear the cheque.
    - No trust was created
    - It would be of very dangerous example if loose conversations of this sort, in
    important transactions of this kind, should have the effect of declarations of trust

    Paul v Constance - inference of conduct


    ● On numerous occasions during their relationship he told Mrs. P that “this money is as
    much yours as mine”.
    ● He and Mrs. P. also deposited their bingo winnings into this account.
    ● They also had once withdrawn some money from this account to go on a holiday
    together
    ● Held: a trust was created - the words used by Mr. C on many occasions to
    indicate that the money in the deposit account was as much Mrs P's as his
    own, were sufficient to constitute a declaration of trust.

    Re Kayford (1975)
    - The company collected payment from customers before delivery of the goods
    ordered by the customers
    - When they ran into financial difficulties, the company started depositing the
    customers’ payments into a separate ‘Customer Trust Deposit Account’

    ● Held: Having regard to the company’s conduct and the circumstances of the case, a
    trust had been created in favour of the customers.
    ● The company had manifested a clear intention to create a trust since, from the
    outset, the whole purpose of what had been done had been to ensure that the money
    sent remained in the beneficial ownership of those who had sent them (the
    customers).
    Fictitious Intentions - Sham Trusts
    - The intention to create a trust must have been genuinely held
    - Where the expressed intention to create a trust is shown to be false, then, even if
    imperative words have been used, no valid trust is created. The so-called trust,
    which, on the surface, appears to have been created, is a sham and is invalid.

    ● Midland Bank v Wyatt [1995] - true intention was to protect his family from
    commercial risk, and not to endow them with an interest in the MH. The transaction
    was a sham and was void & unenforceable
    ● Here W purported to declare a trust of his interest in the matrimonial home (MH). He
    then mortgaged his interest in the MH without informing the bank of the contents of
    the “trust deed

    Minwalla v Minwalla (2004) - the trust was held to be a sham. The Husband had never had
    an intention of respecting the formalities of the trust. His intention was that the resources
    were his and would continue to be his - the trustees were privy to that sham; they went along
    with the husband’s intentions

    You might also like

    pFad - Phonifier reborn

    Pfad - The Proxy pFad of © 2024 Garber Painting. All rights reserved.

    Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.


    Alternative Proxies:

    Alternative Proxy

    pFad Proxy

    pFad v3 Proxy

    pFad v4 Proxy