Unseparated Part of a Whole Certainty of subject matter is often difficult from the perspective of a declaration of a trust where the assignable benefit is described as part of a larger whole. Typically in these cases the maxim regards that as done which out to be done” cannot “equity be used if valuable consideration has not been give for the declaration. Example – If one declares a trust over a parcel of 1000 shares as part of larger parcel of 20,000 shares an effective trust would form inter vivos, immediately as there is no uncertainty regarding the subject matter as per (1927) 39 CLR 528. Tunley v FCT Example The modern law position, from the case of [1994] 3 All ER 214 of the UK Hunter v Moss of Appeal, suggests that if each part of the property is indistinguishable from the rest then specific description is not necessarily fundamental. This was applied in the case of [2006] NSWSC 1379 White v Shortall a declaration of trust was made over 220K of shares out of total of 1500K and the shares were not numbered and were identical to each other. The Court rejected the argument that the trust was unsuccessful instead stating that 220K were held – on trust and the rest were held on resulting trust.
Unseparated Part of a Whole Certainty of subject matter is often difficult from the perspective of a declaration of a trust where the assignable benefit is described as part of a larger whole. Typically in these cases the maxim “equity regards that as done which out to be done” cannot be used if valuable consideration has not been give for the declaration. Example – If one declares a trust over a parcel of 1000 shares as part of larger parcel of 20,000 shares inter vivos, an effective trust would form immediately as there is no uncertainty regarding the subject matter as per Tunley v FCT (1927) 39 CLR 528. Example The modern law position, from the case of Hunter v Moss [1994] 3 All ER 214 of the UK of Appeal, suggests that if each part of the property is indistinguishable from the rest then specific description is not necessarily fundamental. This was applied in the case of White v Shortall [2006] NSWSC 1379 a declaration of trust was made over 220K of shares out of total of 1500K and the shares were not numbered and were identical to each other. The Court rejected the argument that the trust was unsuccessful – instead stating that 220K were held on trust and the rest were held on resulting trust.
Trusts_Summary.docx