Neither an intention to give, nor recollection of the intention, need be present in the instrument that vest legal title in donee. (Strong v Bird) The principle does not apply to property to be acquired in the future by the would be donor (Morton SCC 1927). v Brighouse, Testamentary Trust: Testamentary trust must be in accordance with (Carson Wills Act court refused to complete gift as transfer only to be made upon death because v Wilson: didn't comply with Wills Act) B. The Three Certainties If the trust is invalid for uncertainty the trustee holds legal title but on a presumed resulting – trust to the settlor unless a gift over has been specified in which case gets title that person legally and (likely) beneficially - See Resulting Trusts (Chapter 5) a) the deed or will must disclose with sufficient certainty the intention to create a trust (no need for technical language or expressions) (Nicholl v. Hayma) Meet Requirement for Certainty if: Trustee is placed under an obligation to hold on trust and distribute property for the benefit of another. and full confidence Presumption in favour of gift especially in family-type trusts “in does not signal a (Nicholl full confidence” does not signal a trust, v Hayman – “in but rather a hope by the testatrix that her wishes will be followed). No Certainty inferred from: wish…”, hope…”, request,” full confidence” “I “I “I “in Consideration when drafting/assessing: wording (be imperative), heading of the document (“deed of settlement”); equity looks at substance. b) Subject Matter Both the property and the amount of the beneficial interest need to be (a) ascertained or (b) ascertainable at the moment of creation of (Re trust for what Beardmore: was left by husband after payment of all debt was not ascertained or ascertainable at time of creation of trust, so held invalid; (Sprange: a testatrix left $ to her husband his “for sole use and at his death the remaining part of what is left that he does not want for his own wants and use to be divided between” certain named beneficiaries failed for uncertainty (see criticism below) (a) the trust instrument clearly describes the portion of property “ascertained”: which each beneficiary is to receive; or
Neither an intention to give, nor recollection of the intention, need be present in the instrument that vest legal title in donee. (Strong v Bird) The principle does not apply to property to be acquired in the future by the would be donor (Morton v Brighouse, SCC 1927). Testamentary Trust: Testamentary trust must be in accordance with Wills Act (Carson v Wilson: court refused to complete gift as transfer only to be made upon death because didn't comply with Wills Act) B. The Three Certainties If the trust is invalid for uncertainty the trustee holds legal title – but on a presumed resulting trust to the settlor unless a gift over has been specified in which case that person gets title legally and (likely) beneficially - See Resulting Trusts (Chapter 5) a) the deed or will must disclose with sufficient certainty the intention to create a trust (no need for technical language or expressions) (Nicholl v. Hayma) Meet Requirement for Certainty if: Trustee is placed under an obligation to hold on trust and distribute property for the benefit of another. Presumption in favour of gift especially in family-type trusts and “in full confidence does not signal a – (Nicholl v Hayman “in full confidence” does not signal a trust, but rather a hope by the testatrix that her wishes will be followed). No Certainty inferred from: “I wish…”, “I hope…”, “I request,” “in full confidence” Consideration when drafting/assessing: wording (be imperative), heading of the document (“deed of settlement”); equity looks at substance. b) Subject Matter Both the property and the amount of the beneficial interest need to be (a) ascertained or (b) ascertainable at the moment of creation of (Re Beardmore: trust for what was left by husband after payment of all debt was not ascertained or ascertainable at time of creation of trust, so held invalid; (Sprange: a testatrix left $ to her husband “for his sole use and at his death the remaining part of what is left that he does not want for his own wants and use to be divided between” certain named beneficiaries failed for uncertainty (see criticism below) (a) “ascertained”: the trust instrument clearly describes the portion of property which each beneficiary is to receive; or
Pavlich_Law_250_-_Trusts_Fall_2012_Silvana_Lovera.docx