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
Chapter 4a: Perpetuities GO THROUGH THESE STEPS IF POSSIBLE PERPETUITY PROBLEM (1) Who’s getting what? (2) Are there any conditions or limitations? Is it vested? Future interest: It’s a current present interest to future possession of property. There’s two kinds: Vested future interest: presently-held rights to future possession (such as remainders and reversions). They are property. A future vested interest is (a) created in a living, ascertainable person and (b) not subject to any condition precedent except the natural termination of the prior (life) estate. Contingent future interest: the interests and the possession vest in the future. Subject to legal conditions, they may be property Condition precedent (interest is a remainders): “To Orville if s/he turns 30 years of age”. Becomes vested in Orville when contingency occurs. Condition subsequent (creates rights of entry): “To Orscilla, but if (or “subject to” or “on condition that”) she ceases to use the property for educational purposes (which is a condition subsequent for Orcilla), then creates a right of entry for Bloggs” When condition subsequent occurs, the interest does not vest automatically in Bloggs; it must claim be claimed. Determinable interests (creates rights of reverter): “To Orville while (or “so long as”, “during”) you are married to Orscilla, when you are not, to Snooks” (3) Is the reminder valid? All the requirements below must be stated in the exam, even if briefly, when assessing the validity of a trust. Is it certain? (example religion.) Is there a restraint on alienation? Does it violate public policy? See Rights legislation on prohibited discriminations such as race, gender sexual orientation etc. or conditions that dictate celibacy) Does it violate the rule against perpetuities? Common-law formulation: one must be able to say (a) with absolute certainty at the outset of the trust that under its terms the vesting of equitable interests if they are to occur will do so (b) within lives in being at the time of the creation of