Concise Notes On Equity & Trust 2024

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JOHNSON
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EQUITY AND TRUST

LECTURE NOTES 2023/2024 ACADEMIC YEAR
THE NATURE OF EQUITY
The principle of equity had been applied in different cases across the world. One of the earliest
proponents of the doctrine of equity is the Greek philosopher, Aristotle. He posits that: “This
concept is a means to correct the law in case it is defective due to its universality” (Anatole, The
Nicomachean Ethics V. Ch.10 Ross's transl. 1925). St. Augustine, famous philosopher and
theologian, believed that equity is a virtue. A Roman philosopher and politician, Cicero, equated
this concept with justice. Whereas, the famous Roman jurist, Ulpian, regarded “equity” as a
component of the positive law.
All these varying definitions suggest that in spite of its relevance in the realm of law, there has
been no single definition of equity. In its broadest sense, Equity is fairness. It generally implies a
need for fairness (not necessarily equality in the distribution of gains and losses, and the
entitlement of everyone to an acceptable quality and standard of living. As a legal system, it is a
body of laws that addresses concerns that fall outside the jurisdiction of Common Law.
Equity is always intertwined with the concept of law. It is broadly understood as: “the treatment
of others out of fairness and justice.” In law, also the term Equity refers to a distinct body of laws
and a particular set of remedies and associated procedures.
Even in the field of international law, equity has been used as a source of international obligation.
In the landmark case of: NETHERLANDS V. BELGIUM, the international Court of Justice
applied the concept of equity in order to achieve justice. It was resolved that it gives mandate to
the judges to exercise their discretion in the course of determining what is fair and equitable.
Equity is basically, giving everyone what they need to be successful. The ordinary sense of Equity
rhymes with natural justice. Hence Emmanuel Kant, a German philosopher stated that; “the scale
of justice falls on Equity and that has to do with natural justice and fairness”. However, most
matters which Equity touches on are matters of conscience and are not necessarily enforceable
legally. Equity is based upon the notion of “unconscionability”. That is to say, the Court will
intervene where an act or omission is considered to be “against the conscience”. It is justice
administered according to fairness; the spirit or habit of fairness in dealing with other persons.
Equity has however been made synonymous with justice. This can be categorized in 5 matters:
1. The exploitation of vulnerability or weakness.

2. The abuse of positions of confidence
3. The insistence on rights in circumstances which are harsh or oppressive
4. The inequitable denial of obligations
5. The unjust retentions of property
The term Equity is generally associated with notions of fairness, morality, and justice. Equity was
This note is compiled by Hymanson Hyrich Johnson; it is a concise note on Equity and Trust deduced
from the PowerPoint slides of the Tutor - Mr. Floyd Davies Esq. You are advised to read alongside the
slides. Typographical errors and other mistakes are inevitable.
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evolved to achieve justice and to overcome the rigors and deficiencies of the Common Law. It
was based on the principles of Natural Justice. Natural Justice is identified with the two
constituents of; first, fair hearing which are the rule against bias (nemo judex incausa sua - i.e.
“no man should be a judge in his own cause”), and the right to a fair hearing (Audi alteram
partem - i.e. “hear the other side”).
ORIGINS OF EQUITY
Common Law generally is the body of customary law which originated in the Curia Regis (King's
Court), London. English Common Law was primarily developed by judges and was based on
judicial decisions and precedents. By the end of the 13th century, the English king's common-law
courts had largely limited the relief available in civil cases to the payment of damages and to the
recovery of the possession of property. They had refused to extend and diversify their types of
relief to me the needs of new and more complex situations. A civil action under Common Law
could only be started by the means of a writ. Thus, making of the writs with every new case was
stopped in the 13th century and this meant that if a case was not already covered by the writs, it
was not carried forward. A s a result of this, disappointed litigants turned to the king with petitions
for justice because the courts had afforded either no remedy or one that was ineffective and their
cases were not even carried to the court as the writs were too hurt a or rigid.
THE BIRTH OF EQUITY
These petitions were referred to the lord chancellor, who was the king's principal minister. The
Chancellor decided the cases of which the King had taken note, he did so by largely relying on
his sense of fairness and justice and thus developed a large body of principles which became the
Law of Equity.
Equity was mainly thought of as fairness and it was a very powerful law as it overcame the
conflicts with the Common Law. By the middle of the 14th century the Court of Chancery was
recognized as a new and distinct court. These developments resulted in the fashioning by the
chancellor of new equitable remedies. The following are representative: specific performance of
contract, the enforcement of trusts, injunction, and restitution of benefits wrongfully acquired.
THE CONFLICT BETWEEN COMMON LAW AND EQUITY
As equity developed its own set of principles and remedies, conflicts between the common law
courts and the Court of Chancery arose. Common law judges were often critical of equity, seeing
it as a rival system that created confusion. This rivalry was ended in 1615 where it was made
clear that the principles applied by the Lord Chancellor through the Courts of Chancery were very
different from the ordinary common law which had been developed since the creation of the
Courts of Kings Bench by King Henry. King James I stated that, “where common law and equity
conflict, equity should prevail”.
As Lord Ellesmere put it in the EARL OF OXFORD'S CASE (1615), the role of the Courts of
Chancery, was to correct men's consciences for frauds, breaches of trust, wrongs and oppressions
of what nature so ever they be. The fact of the case was, a defendant appealed against a judgement
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in the common law courts on the grounds that the judgement had been obtained through fraud.
The Lord Chancellor, Lord Ellesmere, agreed and issued a common injunction restraining the
claimant from enforcing the judgement These common injunctions were seen as a direct challenge
to the authority of the common law courts as they effectively deprived the recipient of the ability
to pursue a remedy from the common law court. However, the Lord Chancellor argued that there
was no. conflict between the two courts, as equity did not interfere with the operation of the
common law. Instead, it acted in personam, meaning against the conscience of the recipient.
Therefore, the common law decision was left undisturbed; equity only acted to compel the
recipient to act according to good conscience. This dispute was finally resolved by King James I
in 1616, when he declared in favour of the Court of Chancery. This gave birth to the equitable
maxim: “where the law and equity conflict, equity prevails”.
Furthermore, the role of equity was to correct any injustice which would result from the rigid
application to the common law. As Lord Ellesmere said, the second goal of the Court of Chancery
was to soften and to mollify the extremity of the law.
As the Courts of Chancery, developed their own principles. there were clearly two separate
streams of jurisprudence emerging in English law and these are the common law on one side, and
equity on the other. In practice, it was necessary for the litigant to decide which of these systems
of rules would be necessary to decide his case. Because the Common law courts and the courts
of equity were separate courts. Consequently, only the courts of common law would hear cases
to do with the common law (e.g. whether a contract had been created) and therefore provided
common law remedies (e.g. damages for breach of contract). Similarly, only the courts of equity
would hear cases to do with equitable principles (eg. the enforcement of a trust) or the award of
equitable remedies (eg. injunctions or specific performance). Therefore, the competitive,
common law and equity courts, were beset with attendant delays, expense, and injustices.
JUDICATURE ACT OF 1873
Finally, the Judicature Act 1873-1875, provided that the courts of common law and those of equity
should be merged so that any single court could rule on any question, no matter whether it related
to the principles of equity or to common law rules.
Secondly, the significance of the Act was equitable Remedies. This is because, under the Act, the
courts could grant equitable remedies, such as injunctions, specific performance, and rescission,
alongside common law remedies like damages. This ensured that litigants had access to a broader
range of remedies to meet the demands of their cases.
Lastly, the significance of the Court of judicature Act was it creates the Supreme Court of
judicature. The Act established the Supreme Court of Judicature, which consisted of two main
divisions: I. the High Court of justice, and 2, the Court of Appeal.
The High Court was further divided into several divisions, including the Chancery Division,
which was responsible for handling equity cases. This restructuring made it possible for both
common law and equity matters to be heard and decided in the same court.
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THE PROBLEMS OF THE JUDICATURE АСТ

The traditional view is that only the Jurisdiction for dispensing common law and equity have
fused with the two systems remaining separate. According to Professor Ash Burner (Principle of
Equity, 1st edition 1902) he stated that, “the two streams of jurisdiction though they run in the
same channel; run side by side, and do not mingle their waters.” Thus, legal and equitable rights
remain separate and distinct but administered in the same court.
In the case of SALT V COOPER (1880) Jessel MR, stated to the effect that, the intent of the
Judicature Act was not to fuse the two rules, but rather administrating law and equity under a
single tribunal.
In the case of JOB V JOB (1875), the testator's assets were in the hands of the executor, but they
were later lost unintentionally without the executor's fault. Under common law, executors were
held responsible for such losses, while in equity, executors were not liable for accidental losses
they didn't cause. Jessel MR treated it as a conflict and applied the equitable rule, finding the
executor not responsible.
In the case of BERRY V BERRY (1929); the husband and wife had a separation agreement. They
later reduced the agreed payment in a non-deed written agreement. The wife sued to enforce the
original deal but lout, as in equity, a simple contract could change a deed, allowing the reduced
payment to stand. The court emphasized equity rules prevailing in conflicts.
However, some academics disagree, and believe that the two systems of common law and equity
have fused. Lord Diplock said: “After a century, Professor Ashburner's vivid metaphor o, two
streams flowing into one channel must have a different conclusion. It may take time before the
water of two confluent streams is thoroughly intermixed but a period has to come when the
process is complete”. Some other scholar and judges believe that, the judicature Act did not
merely fuse the administration of the rules of law and equity, but rather fused the rules themselves.
According to Lord Denning in ERRINGTON V ERRINGTON (); he stated that, the rules of
equity and common law have been fused for almost eighty years by that time.
In the case of TINSLEY V MILLIGAN (1994) AC 340, Lord Browne-Wilkinson held to the effect
that, English law now has one single law that contains both legal and equitable interests.
Therefore, Lord Browne- Wilkinson saw that a person in ownership of either type of estate
possessed a right of property that amounted to a right in rem as opposed to merely a right in
personam. It was thus held that the equitable principle that governs when property or a title was
affected under illegality had now become one after merging the common law rule.
Furthermore, in the case of BOYER V WARBEY (1953) QB 234, Lord Denning made a
clarification of what he meant by 'fuse' He hu id inter alia that, prior to the judicature Act 1873
the doctrine of covenants relating to land only applied to those covenants that were under seal as
opposed to agreements. However, the judge stated that since the 'fusion' of Equity and common
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law, this position is not 'different.

In the case of UNITED SCIENTIFIC HOLDINGS LTD V BURNLEY BOROUGH COUNCIL
(19), Lord Diplock explained his perception of Professor Ashburner's metaphor of how equity
and law are two steams flowing in the same channel but never mingling. In his view, the said
metaphor has become both deceptive and mischievous. He states that the judicature Act 1873
brought about the fusing of adjectival law system and the substantive law which were formerly
administered under the courts of Chancery and court of law. Lord Diplock says that the 'two
streams' have certainly mingled now.
In the case of LORD NAPIER AND HUNTER (1993) 1 ALL ER 385 at p401; it was stated by
Lord Goff inter alia that, the judiciary's task nowadays is to view the two strands of authority vat
equity and law, as one coherent whole.
CONCLUSION
In conclusion, it is true that since their inception, the 1873 and 1875 Judicature Act has brought
about differing views on the fire of equity and law as distinct jurisprudential traditions. Some
judges and scholars support the fact that the Judicature Act actually fused the administration of
the rules of law and equity as opposed to fusing the rules themselves.
Other scholars and court decisions support the fact that, the judicature Act actually fused the rules
of equity and law as opposed to just its administration. Both views are supported by authorities
and strong justification that a lot of confusion as to which side is right occurs. However, despite
all the diverse opinions by judges and scholars the rules of equity and common am are clearly
administered in one court and as seen in the cases above, are at times subjected to cross-remedies.
In Sierra Leone, there are many no distinctions between actions at law and suits in equity. Their
administration is fused in one procedural system, with only one civil action, in the same court.
The rules that have been accepted by proceeding judges became precedent and are now known
as maxims and are used as guidelines by the court.
EQUITABLE MAXIMS
Maxims are concise and meaningful expression of general principles or rules. 'Maxims of equity
are those principles developed by the court of chancery in its effort to ameliorate the hardship of
common law. Through these maxims, the court of chancery found its way to escape the hardship
of common law and provide fair and conscionable remedies where there is none.
1. HE WHO SEEKS EQUITY MUST DO EQUITY

This maxim means that to obtain an equitable relief the plaintiff must himself be prepared to do
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'equity'. A person seeking an equitable relief or remedy must himself act fairly. The submission
here refers to the person's future conduct and not to the past. This maxim has application in the
following doctrines: illegal loans, doctrine of election, consolidation of mortgages, wife's equity
to settlement, liquidtable estoppel, restitution of benefits on cancellation of transaction and set-
off
Example
 Consolidation of mortgages
Where a person creates a mortgage in respect of two distinct properties, the transaction is said to
be consolidated. The rule therefore is that one of the properties in respect of which mortgage is
created cannot be redeemed to the exclusion of the other. In other words, both properties must be
redeemed in order for the transaction to be deemed discharged.
Illustration
Chernoh mortgaged his property X and Y for a loan of Le 2,000, Chernoh should not be heard to
Pay Le 1, 000 in redemption of property X. The Le 2, 000 payment must be completed which
entitles him to redeem X and Y property at once.
2. HE WHO COMES TO EQUITY MUST COME WITH CLEAN HANDS
It connotes anybody praying for an equitable relief over a particular matter should show that he
has behaved honesty and fairly in regard to that matter. Equity demands fairness not only from
the defendant but also from the plaintiff. It is therefore said that “he that hath committed an
inequity, shall not have equity.”
Application of the maxim
LOUGHRAM VS. LOUGHRAM 292 U.S. 216 (1934), An infant beneficiary falsely re resented
himself to be of majority age to the trustee of money to which he was entitled. As a result, the
trustees paid him. He was not entitled to this money until he became of age. Subsequently when
he became of age, he sued the trustees for the same amount of money. It was held that neither he
nor assignees could receive the money.
EVERET v. WILLIAMS (THE HIGHWAY MAN CASE) (1775), The parties brought question
as to the fair share of their business transaction which was armed robbery. The court struck out
the case for being impertinent, arrested the parties and awarded cost against the attorney.
3. EQUALITY IS EQUITY
This maxim is also explained as "Equity delighteth in equality". which means thar as far as
possible. Equiry would put the litigating parties on an equal level so far as their rights and
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responsibilities are concerned. It applies in three broad circumstances namely:
 the presumption of tenancy in common,

 severance of joint tenancy and
 the principle of division.
Presumption of Tenancy in Common:
Equity abhors joint tenancy due to the rule of survivorship (jus accrescendi) which makes
properties devolve to co-partners or co-owners instead of to the party's estate. As a result, equity
presumes tenancy in common in any slightest of its opportunity.
Loan on Mortgage:
Where property is mortgaged in favour of more than one mortgagee, equity presumes it to be
tenancy in common, so that where one of the mortgagees dies, the co-mortgagees does not absorb
his interest in the mortgage transaction, rather it goes to the deceased mortgagee's estate.
4. EQUITY WILL NOT SUFFER A WRONG TO BE WITHOUT A REMEDY

It means, where there is a right, there is a remedy (In Latin, ubi jus ibi remedium). It means that
no wrong should go redressed if it is capable of being remedied by the courts. For equity, once
there is a wrong, there should be a remedy.
 Trustee: At common law, trustee is recognized: the legal owner of a trust property. The
beneficiary is not recognized. Under equity however, equity recognized the interest of the
beneficiary and requires the trustee to act conscionably with the trust property. The
beneficiary can in equity, maintain action against the trustee If he misappropriates the
trust property.
 Mortgage: At common law, once the redemption date has passed, the mortgagor can no
longer redeem. Equity recognizes the hardship which this setting causes to the mortgagor
and invents the equity of redemption which gives the mortgagor the right to redeem even
after redemption date has passed.
5. EQUITY SEES AS DONE THAT WHICH OUGHT TO BE DONE:

It is a maxim that means that when individuals are required, by their agreements or by law, to
perform s me act of legal significance, equity will regard that act as having been done as it ought
to have been done, even before it has actually happened.
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 Walsh v. Lonsdale (1882) 21 ChD 9 The defendant, Lonsdale, agreed to grant the
claimant, Walsh, the lease of a mill for seven years, the rent to be paid quarterly in arrears
with a year's rent payable in advance if demanded. The parties did not execute a deed for
it grant of the tenancy, but the claimant moved in and paid rent quarterly in arrears. The
defendant then demanded a year's rent in advance. The claimant refused to pay arguing
that under common law rules a lease had to be created by deed to be legal.
This had not been done, therefore the lease was not legal.
Judgement- The Court of Appeal found in favour of the defendant landlord. The
Judicature Acts 1873- 1875 had fused the two separate legal systems of common law and
equity in co one system. In any conflict, the rules of equity should prevail. According to
the equitable maxim 'Equity looks on that as done that which ought to be done' the parties
were treated as having a lease enforceable in equity from the date of the agreement to
grant the lease. Consequently, the landlord was allowed to distrain the tenant’s goods in
satisfaction of the debt.
6. EQUITY LOOKS AT INTENT RATHER THAN FORM

Common Law was very rigid and inflexible. It attached a lot of importance to the use of correct
forms or procedures in relation to an act. It regarded the form of a transaction to be more important
than its substance. Failure to comply in such form invalidated actions. Common Law looked to
the very letter of the agreement and not the intention behind it.
On the other hand, Equity looks to the spirit not the letter; it looks to the intention of parties and
not to the words. Equity developed with the aim of achieving justice, ensuring that substance is
upheld over formalities.
 Mortgage: Equity allows a mortgagor to redeem his mortgaged property even after the
redemption date has passed. This is because; the parties did not intend the transaction to
be a sale but a mortgage.
 Contractual Obligation: At common law, time is of essence. At equity however, time is
generally not of essence. When the time for performance of contract has passed, equity
can still order for specific performance. This is because; the intention of the parties was
for the contract to be performed.
7. EQUITY ACTS IN PERSONAM:

While common law acts in rem, equity is said to act in personam. The decrees or orders of the
old court of chancery were given in personam i.e. against the defendant personally. They were
enforceable against the conscience of specified persons.
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 Committal to Prison: In matters peculiar to property where a person refused to convey

the property to another by decree, the court would act against the person by committing
him or her to prison.
 Writ of Sequestration: Here, the court of equity appoints a third person in charge of the
defendant's property until he performs the obligation so ordered.
 Vesting Order: The court may transfer the defendant's property to another person and
that other person obtains a good title.
8. EQUITY FOLLOWS THE LAW (BUT NOT SHEEPISHLY OR SLAVISHLY)

This means that equity generally follows the common law rules. However, where following the
common law rule will lead to injustice, equity was ever ready to depart from the law.
 Primogeniture Rule: Equity follows the common law rule of primogeniture, where the
eldest son inherits the property of his deceased father who dies Intestate. However, where
the first soromises the father that he would take care of his siblings, and the father as a
result did not make a will, equity will deviate from the primogeniture rule and holds the
first son bound by his words. See the case of Strickland v. Aldridge.
 Contract: Equity follows the common law rules of contract: offer, acceptance,
consideration, contractual capacity, privity of contract, etc.
 Trust: Equity just as common law sees the trustee as the legal owner of a trust property.
Equity however went further to recognize the interest of the beneficiary.
9. DELAY DEFEATS EQUITY (DOCTRINE OF LACHES)

“Equity aids the vigilant and not the indolent”; In Latin, “Vigilantibus, Non Dormientibus, Jura
Subveniunt” meaning, if one sleeps on his rights, his rights will up away from him. Equitable
relief will not be given if the applicant has unduly delayed in bringing an action. Legal claims are
barred by statutes of limitation and equitable claims may be barred not only by limitation law but
also by unreasonable delay, called laches.
Illustration of maxim
 Allard v. Skinner (1887)

Miss Allard was introduced by the Revd Mr: Nihill to Miss Skinner; a Indy superior of a religious
order 1 led "Protestant Sisters of the Poor*. She had to observe vows of poverty and obedience.
Three days after becoming a member, Miss Allcard made a will bequeathing all property to Miss
Skinner and passed on railway stock that she came into possession of in 872 and 1874. She then
claimed the money back after she left the sisterhood.
Lindley LJ, held that she was unduly influenced but barred by laches from getting restit-tion. And
in any case she would only have been able to recover as much of the gift as remained in the
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defendant's hands after some of it had been spent in accordance with her wishes.
 Doctrine of laches
the plaintiff's unreasonable delay could be a weapon of defense by the defendant against the
plaintiff. For example, a plaintiff all wed his land to be occupied by the defendant and this was
acquiesced by him even beyond the period of limitation. On a suit of the land, it was decided that
as the period of limitation to recover possession had expired, no relief could be granted.
10. EQUITY IMPUTES AN INTENTION TO FULFILL AN OBLIGATION

This is when a person is under an obligation to do a certain act, and he does some other act. which
is capable of being regarded as an act in fulfilment of his obligation.
Illustration of the maxim
 Sowden v. Sowden
A husband covenanted with the trustee of his marriage settlement to pay to them £50.000, to be
laid out by them in purchase of land in a particular area D. He, in fact, never paid the sum, but
after marriage, purchased the land at D in his own name, for £50.000. He died and could not bring
the land into settlement. Equity courts construed that he purchased land to fulfil his obligation.
Equity will regard the property as subject to the agreement between the husband and wife. In
otherwords, a person is presumed to do what he is bound to do.
11. WHERE EQUITIES ARE EQUAL, THE FIRST IN TIME PREVAILS

This deals with priorities, where there is a conflict between two competing equitable interests in
property, the first in time will prevail. In all cases where neither party has the legal estate, the rule
is usually that the party whose equity was property attached first has priority.
The rule in Dearle v Hall (1828) 3 Russ I.

The rule broadly provides that where the equitable owner of an asset purports to dispose of his
equitable interest on two or more occasions, and the equities are equal between claimants, the
claimant who first notifies the trustee or legal owner of the asset shall have a first priority claim.
12. EQUITY DOES NOT ACT IN VAIN

It means that a court will not make an order if compliance is impossible, and that severe hardship
may influence a court in granting an equitable remedy. A court exercising equitable jurisdiction
can deny specific relief fi the order is likely to have practical effect.
CONCLUSION
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These maxims not only help to explain the essence of Equity but indicate situations in which
equitable rules would or would not be applied as well as the relationship between Common Law
and Equity. Equity would always safeguard an individual's right, unless it is unconscionable to
do so. Generally, Equity acts on the conscience and would always act in those important
circumstances which are disregarded by the Common Law.
EQUITABLE REMEDIES
Equitable remedies are court-ordered actions that direct parties to do or not to do something. They
are granted by a court and are designed to provide a fair and just solution to a dispute. Equitable
remedies are granted when legal remedies or monetary compensation cannot adequately resolve
the wrongdoing.
MAIN PRINCIPLES THAT DETERMINE WHEN AN EQUITABLE REMEDY IS
ORDERED
Equitable remedies are discretionary. It is the discretion of the court to grant it and cannot be
obtained as of right. It therefore follows that it is only given where it is just and equitable to do
so.
MAIN PRINCIPLES
a) Where damages are an adequate remedy, equitable remedies will not be ordered.
b) Equitable remedies will not be given were it would cause undue hardship. Thus equitable
remedies will not be ordered of a contract of a personal services, such as an employment
contract, on the basis that it is contrary to public policy to compel an unwilling party to
maintain continuous relations with another (also it would require constant supervision). See
the case of Lumley V Wagner [1852]; in this case, Wagner contracted to sing only at
Lumley's theatre and elsewhere with his consent. She then signed up with another theatre,
without Lumley's consent. Held: this was a contract for personal services and could not be
enforced. Thus, the equitable remedy of specific performance was refused.
(c) The remedy will only be given on the basis of mutuality, i.e. the remedy will only be
granted if both parties could, if necessary, seek the protection of the court. For this reason, an
infant cannot obtain an order for specific performance since the court would not be able to enforce
such an order against him.
(d) Equitable remedies will not be given to a party who has acted unfairly or improperly. This
is expressed by the maxim 'He who comes to Equity must come with clean hands'.
(e) As will all equitable remedies, a party who wish to benefit from it must act promptly - Delay
defeats the Equities'. That is, the Claimant must start proceedings within a reasonable time of the
Defendant refusing to proceed with the contract.
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 SPECIFIC PERFORMANCE
The term "specific performance" refers to literal performance of one's obligations under a
contract. Should a party default on his obligation, a court may issue an order for specific
performance, requiring a party to perform a particular action. The action is usually one that has
been previously detailed in a contract.
Specific performance is an alternative to a court's decision to award damages. But specific
performance is a very limited remedy: it is only available in the following instances:
a) For breach of contract to sell a unique item, that is, a unique item of personal property (a family
heirloom), or a parcel of real estate (all real estate is unique).
b) But if the item is not unique, so that the claimant can go out and buy another one, then the legal
remedy of money damages will solve the problem.
c) And specific performance will never be used to force a person to perform services against his
will, which would be involuntary servitude. A person will not be forced to do what he will not
do.
EXCEPTIONS TO SPECIFIC PERFORMANCE
The award of specific performance is never a guarantee. There exist exceptional circumstances
barring specific performance, which influence a court's decision. Some examples of these
exceptional circumstances barring specific performance include:
(a) Such an order would cause the defendant severe hardship.
(b) The underlying contract is found to be unconscionable. or too vague to enforce.
(c) Damages would be enough to remedy the plaintiff's loss, and
(d) The claimant has "unclean hands" meaning he has misbehaved in some way
If the court finds any of these exceptional circumstances barring specific performance to be true
then specific performance will not be ordered.
 INJUNCTIONS
An injunction is an equitable remedy in the form of a court order, whereby a party is required to
refrain from doing or stop certain acts whilst the court conducts further investigation to ascertain
the issues of facts. An injunction commands an act that the court regards as essential to justice,
or it prohibits an act that is deemed to be contrary to good conscience. It is an extraordinary
remedy, reserved for special circumstances in which the temporary preservation of the status quo
is necessary.
An injunction is ordinarily and properly elicited from other proceedings. Example: A dispute to
land where the claimant might bring an action against the defendant for ownership of land. The
plaintiff might apply to the court for an injunction against the defendant's continuing construction
on the land. The injunction is an ancillary remedy in the action against the tenant.
The courts exercise their power to issue injunctions judiciously, and only when necessity exists.
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An injunction is usually issued only in cases where irreparable injury to the rights of an individual
would result otherwise. It must be readily apparent to the court that some act has been performed,
or is threatened, that will produce irreparable injury to the party seeking the injunction.
An injury is considered irreparable when it cannot be adequately compensated by an award of
damages. If a loss can be calculated in terms of money, there is no irreparable injury. Loss of
profits alone is insufficient to establish irreparable injury. The potential destruction of property is
sufficient. The court that issues an injunction may, in exercise of its discretion, modify or dissolve
it at a later date if the circumstances so warrant. If a party breaches this court order it is a serious
offence and can merit arrest or possible jail sentence. The reason for injunctions is that money
would be an inadequate remedy for breaching the person's right.
TYPES OF INJUNCTIONS
1. PRELIMINARY OR TEMPORARY INJUNCTION
A preliminary or temporary injunction are often issued by courts to stop action until a hearing can
be old to determine what the course of action should. Its purpose is to prevent dissolution of the
plaintiffs’ rights. The main reason for use of a preliminary injunction is the need for immediate
relief.
Preliminary or temporary injunctions are conclusive as to the rights of the parties, and they do
not determine the merits of a case or decide issues in controversy. They seek to prevent threatened
wrong, further injury, and irreparable harm or injustice until such time as the rights of the parties
can be ultimately settled.
A motion for a preliminary injunction is never granted automatically. The discretion of the court
should be exercised in favour of a temporary injunction, which maintains the status quo until the
final trial. Such discretion should be exercised against a temporary injunction when its issuance
would alter the status quo. For example, during the Florida presidential-election controversy in
2000, the campaign of GEORGE W. BUSH asked a federal appeals court for a preliminary
injunction to halt the manual counting of ballots.
It sought a preliminary injunction until the U.S. Supreme Court could decide on granting a
permanent injunction. In that case, Siegel v. Lepore, 234 F.3d 1163 (lIth Cir. 2000), the U.S.
Court of Appeals for the Eleventh Circuit refused to grant the injunction, stating that the Bush
campaign had not “shown the kind of serious and immediate injury that demands the
extraordinary relief of a preliminary injunction.”
2. PREVENTIVE INJUNCTIONS
An injunction directing an individual to refrain from d g an act is preventive, prohibitive,
prohibitory, or negative. This type of injunction prevents a threatened injury, preserves the status
quo, or restrains the continued commission of an ongoing wrong.
The Florida vote count in the presidential election of 2000 again serves as a good example. There,
the Bush campaign sought preventive injunctions to restrain various counties from performing
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recounts after the Florida results had been certified. The Bush campaign did not attempt to
overturn results already arrived at, but rather attempted to stop new results from coming in.
In turn, the Gore campaign attempted to obtain a preventive injunction to prevent Florida's
Secretary of State from certifying the election results.
3. THE INTERLOCUTORY/ INTERIM INJUNCTION
Interim injunction is also called interlocutory injunction. It is to protect a litigant who necessarily
suffers the law's delay. This injunction is granted prior to the full hearing of the dispute between
the parties. The primary function of an interlocutory injunction is to preserve the status quo
existing between the parties to an action until the outcome of the main hearing.
A claimant must give an undertaking to pay damages to the defendant so that the latter is
compensated in the event that an interlocutory injunction is awarded restraining the defendant
from an act, which later at trial it is found he was entitled to perform. The old approach was to
ask whether the claim would be likely to succeed at trial and, if so, the court would grant an
injunction. This was tantamount to making a pre-judgment of the issue without hearing the
evidence.
The current English position established by the House of Lords in the case of: American
Cyanamid v. Ethicon Ltd. (1975); In this case, the claimant obtained an interlocutory injunction
to restrain the defendants from marketing surgical products in alleged infringement, Lord Diplock
rejected the prima facie case test. His concern was to prevent the court from dealing with
complicated questions of law and fact at the interlocutory stage. He stated that the test for the
grant of an interlocutory injunction was as follows: The claimant had to establish that his/her
claim was not frivolous or vexatious, in other words that there was a serious question to be tried.
4. MANDATORY INJUNCTIONS
A mandatory injunction is a court order compelling person to perform a certain act. Mandatory
injunctions are two types-
 “restorative” mandatory injunction is one restoring the status quo by requiring the
defendant to do an act and
 “enforcing” mandatory injunction requires the performance of some positive act, often on
at continuous basis. This second type is less often granted than the first.
Because mandatory injunctions are harsh, courts do not favour them, and they rarely grant them.
Such injunctions have been issued to compel the removal of buildings or other structures
wrongfully placed upon the land of another.
In case of: Redland Bricks v Morris (1970), Lord Upjohn said: A mandatory injunction can only
be granted where the plaintiff shows a very strong probability upon the facts that grave damage
will accrue to him in the future… It is a jurisdiction to be exercised sparingly and with caution
but in the proper case unhesitatingly Courts are even more reluctant to grant mandatory
injunctions at an interlocutory stage. The question arises, however, as to what is the appropriate
test to be applied.
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In the case of: Shepherd Homes v Sandham (1970), Megarry J. held that at the interlocutory
stage it is far less likely the court will award a mandatory injunction. The case has to be “unusually
strong” and there must be a “high degree of assurance” that the trial will conclude that it was
appropriate to grant the injunction.
5. PERMANENT INJUNCTIONS
A permanent or perpetual injunction is one that is granted by the judgment that ultimately disposes
of the injunction suit, ordered at the time of final judgment. This type of injunction must be final
relief.
Permanent injunctions are perpetual, provided that the conditions that produced them remain
permanent. Permanent injunctions have been granted in the following instances:
• to prevent blasting upon neighboring premises,
• to enjoin the dumping of earth or other material upon land, and
• to prevent pollution of a water supply.
An individual who has been licensed by the state a practice a profession may properly demand
that others in the same profession subscribe to the ethical standards and laws that govern it. A
Permanent injunction is a proper remedy to prevent the illegal practice of a profession, and the
relief may be sought by either licensed practitioners or a professional association. The illegal
Practice of Law, medicine, dentistry, and architecture has been stopped by the issuance of
injunctions.
6. MAREVA INJUNCTION
This type of injunction can also be known as a freezing injunction. Where one feels that they have
a substantial case against the other they can apply to the courts for this only if they feel that the
other party may move or hide assets. In order to gain this type of an injunction plaintiff must
prove that they have a substantial case and must also prove that the assets are at risk. It must also
be convenient to grant it.
CONTEMPT
An individual who violates an injunction may be punished for Contempt of court. A person is not
guilty of contempt, however, unless he or she can be charged with knowledge of the injunction.
Generally, an individual who is charged with contempt is entitled to a trial or a hearing. The
penalty imposed is within the discretion of the court. Ordinarily, punishment is by fine,
imprisonment, or both.
 RESCISSION
Rescission is when a contract is rendered null and void, and so is no longer recognized as legally
binding. The courts can free non-liable parties from their agreed obligations and, when possible,
will effectively seek to restore them to the position they were in before the contract was signed.
This is done by returning things that were exchanged, such as money, to all parties involved.
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The remedy of rescission means that an entire contract is set aside. For legal purposes, it's treated
as though it was never made. It never took place. The outcome of rescission is:
• whatever was done by the parties by making the contract is reversed
• the parties are put back in the position they would have been in, as if the contract never even
been made. That's the status quo and it's treated as "non-existing".
• The transaction established by the contract is brought to an end with retrospective effect.
When the right to rescind is available and properly exercised, it is said that the contract has been
"rescinded".
BARS TO RESCISSION
For the remedy of rescission to be available:
• the contracting party seeking the remedy must not have affirmed the contract
• restitutio in integrum must be substantially possible: both sides of the transaction must be
able to be undone
• a bona fide purchaser for value without notice must not have taken an interest in property
which would be affected by the rescission
If those bars to rescission have not been satisfied, rescission should be available as a remedy
for the causes of action to which it applies as a remedy.
GROUNDS TO RESCIND
Contracts are rescinded when the parties thought they had a deal, but the basis was wrong, or
didn't exist. Accordingly, rescission of a contract is available for causes of action such as:
 Misrepresentation: whether innocent, negligent, or fraudulent_ Rescission for
misrepresentation applies in cases where a party relied on a statement by the other party
to enter the contract, and the statement was not true.
 Law of mistake: This implies, the state of affairs underlying the reason for making the
contract was not as one or more of the parties thought it was: one or both of the parties
made a relevant mistake by law
 Bribery and Corruption
 Breaches of Fiduciary Duties: For example, if secret commissions have been procured
by an agent for their principal under the contract
THE RESULT OF RESCISSION
When a contract rescinded, the courts apply the wide array of powers to undo the events following
the formation of the contract to put the parties in the position they would have been in, as if the
contract had not been made. This might mean: for a contract where ownership of physical
property was transferred from one party to another, or ring that the property be returned to the
original owner where a payment of money took place in reliance of the contract, ordering that
money (in the form of damages) be returned to the original owner, or where expenses were
incurred by a party in reliance of the contract, payment of damages by one party to the other to
compensate them for the expense incurred in reliance of the contract.
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THE NATURE OF TRUSTS

The law of trusts was constructed as a part of "Equity", which sought to correct the
strictness of the common law. The trust was an addition to the law of property.
WHAT IS A TRUST?
A trust is a legal construct which describes a situation where a person who has a certain
property (settlor) asks another individual (trustee) to temporarily hold that property, so
that one day they can give it to its rightful owner (beneficiary).
EXAMPLE
Imagine that your dad gave you a cheque for Le 10,000 and asked you to pass that cheque
to your younger brother when he turns 18 years. How would you describe this kind of
relationship?
In this case:
 your dad would be the settlor,
 you would be the trustee and
 your younger brother would be the
beneficiary.
TRUST RELATIONSHIP
DAD YOU YOUR BROTHER
In this specific example above, the settlor (your dad) transferred the property (cheque) to you
(trustee) physically. He simply handed it over to you.
But transferring the property from the settlor to the trustee doesn't always have to
involve a physical transfer of property. For instance, if your dad wanted you to hold
a house so that you can pass it onto your brother when he turns 18, would he
physically take the house and hand to over to you?
 Your Father
He would instead, write a document (known as the 'trust document') which would describe
that he wanted you to hold the 'legal title' to the house as a trustee, so that you can pass it
on to your brother (beneficiary) when he turns 18.
 Legal Title
Title to property which gives its holder the right to transfer the property to another, e.g.
through sale or as a gift.
Even though you (the trustee) would hold this “legal title” to the house, the house would
technically not be yours because of the trust document. You wouldn't be able to simply
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forget about your brother (the beneficiary), sell the house and keep the money for yourself.
Under the trust document, your brother would have what is known as an equitable title to
the house. This means that he (the beneficiary) would be entitled to any financial benefits
derived from the house. So technically, even though you would hold the legal title to the
house, your brother would be the one truly entitled to it.
 Equitable title
Title to property which gives its holder the right to derive financial benefits from the property
(e.g. through rent or appreciation in value), but not to transfer the property to another. If for
example, you sold the house, you wouldn't be able to keep the money for yourself, you would
have to pass it onto your brother. Equally, if you rented the house, the rent money would
belong to your brother and not to you.
Your role (as a trustee) in this whole situation would only be to temporarily manage the
house for your brother - the ultimate owner - until he turns 18.
NB: Because your brother would only have the beneficial title to the house and not the legal
title, he wouldn't be able to make decisions about the house herself before he turned 18. For
example, he wouldn't be able to rent the house to someone else or sell it.
DEFINITION OF TRUST
 PROFESSORS KEETON AND SHERIDAN IN THE LAW OF TRUSTS 11TH EDITION

PAGE 2 DEFINE A TRUST AS FOLLOWS:
A trust is the relationship which arises whenever a person, called the trustee, is compelled
in equity to hold property, whether real or personal, and whether by legal or equitable title,
for the benefit of some persons, of whom he may be one and who are termed beneficiaries
or "cestuis que trust," or for some object permitted by law, in such a way that the real
benefit of the property accrues, not to the trustee, but to the beneficiaries or other objects
of the trust.
 HAYTON & MARSHALL, LAW OF TRUST AND EQUITABLE REMEDIES

(2001)
A trust arises when the owner of property declares himself a trustee of it, or transfers it to
someone else to be a trustee of it, for the benefit of one or more beneficiaries. Trustees have
two roles:
First, to hold and administer the trust assets; and, second, in the case of a trust for
beneficiaries, to distribute the income from the trust assets (and ultimately the trust assets
themselves) to appropriate beneficiaries.
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INTERNATIONAL LAW
 HAGUE CONVENTION ON THE LAW APPLICABLE TO TRUSTS AND ON THEIR

RECOGNITION (1985)
Article 2
For the purposes of this Convention, the term "trust" refers to the legal relationship created-
inter vivos or on death- by a person, the settlor, when assets have been placed under the
control of a trustee for the benefit of a beneficiary or for a specified purpose.
KEY FEATURES OF A TRUST

(a) the assets constitute a separate fund and are not a part of the trustee's own estate;
(b) title to the trust assets stands in the name of the trustee or in the name of another
person on behalf of the trustee;
(c) the trustee has the power and the duty, in respect of which he is accountable, to
manage,
(d) employ or dispose of the assets in accordance with the terms of the trust and the
special duties imposed upon him by law. and is personally liable to the beneficiary
for any breach of this duty.
(e) There is a split between economic benefit and management of property.
(f) the legal title holder (the trustee) must use the property exclusively for the benefit of
the beneficiary.
(g) A split between the legal title and the equitable title to the property.
The basis of the beneficiary's claim against the trust property is that it would be
unconscionable for the trustee to deny the beneficiary's interest
CREATION OF TRUSTS
INTRODUCTION
Creating a trust may not be as simple as illustrated. Many people have tried creating trusts
with their property and failed miserably, because the wording of the trust document that
they prepared was not clear enough for the courts to understand how exactly the trust should
operate.
For that reason, the courts have come up with three basic principles describing when a
trust is considered as valid. Those principles are known as “trust certainties” or “the three
certainties”. The three certainties were originally identified by the court in the case of
Knight v Knight.
THE THREE CERTAINTIES
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1. Certainty of intention
2. Certainty of subject matter
3. Certainty of objects
The three certainties test came from - KNIGHT V KNIGHT (1840) 3BEAV 148
Lord Langdale MR: First, if the words were so used, that upon the whole, they ought to be
construed as imperative; (certainty of intention), secondly, if the subject of the
recommendation or wish be certain, (certainty of subject matter) and thirdly,if the objects
or persons intended to have the benefit of the recommendation or wish be also certain.
(Certainty of object)
1. CERTAINTY OF INTENTION
It's a legal principle which states that a trust will only be valid if it is clear from the
trust document that the settlor intended to create a trust. Just because a document states that it
is a trust document, this doesn't automatically mean that a trust was created. Instead, the
court will look at each situation individually,
 read the full wording of the document,
 assess the circumstances, and
 decide whether the settlor had a genuine intention to create the trust, rather than to
give the property as a gift to the trustee.
RULES ON WHEN THERE IS CERTAINTY OF INTENTION

A trust will only be formed if it is clear from the actions of the settlor that they intended to
form a trust.
 Jones V Lock
A father returned from a business trip without a gift for his son. When the family told him
of, he put a £900 cheque in the baby’s hand. and said “look you here, I give this to baby; it
is for himself and I am going to put it away for him, and will give him a great deal more
along with it”. In order to prevent the baby from tearing the cheque he locked it in the safe
and died six days later. The court was asked to decide whether the writing and locking of
the cheque in a safe was evidence of the father's intention to hold the cheque as a trustee for
his son. The court held that writing and locking of the cheque in a safe did not constitute a
trust because the father had not actually endorsed the cheque by signing it. Therefore, it was
clear from his actions that he did not mean for the cheque to ǎe valid and held on trust for
his son.
 Paul V Constance
Ms. Paul and Mr. Constance lived together as man and wife. Mr received £950
compensation for an industrial accident and both parties agreed to put the money in a
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deposit account in Mr. C's name. On numerous occasions both before and after the opening
of the account, Mr. c told Ms. P that the money was as much hers as it was his. After Mr
C's death, Ms. P wanted to receive the remaining money. It was held that a trust was
formed. Mr C. by his words and actions, declared himself a trustee of the money for
himself and for Ms. P. Accordingly, 50% of the fund was held by Mr. C upon trust for Ms.
P and she was entitled to have it.
Precatory Words
“Precatory words” are various words which express the testator's wishes, hopes etc. with
regards to the property, e.g. “I’ll leave all my property to my husband feeling confident that
he will act reasonably towards our children in dividing the same”. These words may or may
not create a trust, depending on the surrounding circumstances and the entire context of the
case.
Precatory words will only create a trust if it is clear from thewords that the settlor intended
to create a trust.
 Re Adams and Kensington Vestry

Testator left his property by will “unto and to absolute use of my wife. in full confidence
that she will do what is right as to the disposal thereof between my children”. The court
had to decide whether the words used in the will created a trust in favor of the children.
The court held that no trust had been created for the children, and the wife was entitled to
the entire property under the will.
2. CERTAINTY OF SUBJECT MATTER

It is a legal principle which states that a trust will only be valid if it is clear from the trust
document what the property subject to the trust is. It is simply the certainty as to which
property was passed to the trustee and held by them on trust for the beneficiary.
Rules on when there is certainty of subject matter

A trust will not be formed if the wording describing the property under the trust is unclear
 Palmer V Simmonds
A woman by her will left the residue of her estate to her friend, Mr. Harrison, subject to
the proviso that, if he died childless, “he will. leave the bulk of my said residuary estate
unto...” It was held that the word “bulk” was not precise enough to clearly specify the
property under the trust. Therefore, the trust was not created.
A trust will not be formed if the wording of the trust does notclearly describe the specific
part of the settlor's property which is subject to the trust.
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 Re London Wine Company

A company had substantial stocks of wine in a number of warehouses. It was common
practice that wine would be sold, but remained stored by the company. The customer
received a certificate of title, but the customer's wine was not separated from the rest of the
stock. The issue was whether the wine sold was held on trust for the customers or whether
the wine belonged to the company and could be distributed between company's creditors.
It was held that no trust was created in favor of the customers because the wine bottles sold
were not singled out in any way from the remainder of the wine, and so ti was not possible
to identify them.
For a trust to be valid it must clearly allocate to each beneficiary a share of the property.
 Boyce V Вoyce
The trust property consisted of two houses and there were two named beneficiaries, Maria
and Charlotte. Maria was to choose which house she wanted. The other house was to be
held on trust for Charlotte. Maria died before the testator without making any selection. It
was held that the trust became invalid with Maria's death, because it was impossible to
identify which of the two houses should be passed to Charlotte.
If the exact share of the property to be passed to each beneficiary is not specified, the
courts will uphold the trust and divide the property equally between the beneficiaries. but
only where there is no intention to the contrary in the wordingof the trust.
 Burrough V Philcox
A trust was set up to benefit the settlor's son and daughter, but their beneficial shares were
not specified. The issue was whether the trust was valid in the absence of a clear indication
of what share of the property each child should get. It was held that as there was no intention
to the contrary in the wording of the trust, the court upheld the trust by dividing the property
equally between the two children.
3. THE CERTAINTY OF OBJECTS

It is a legal principle which states that a trust will only be valid if it is clear from the trust
document who the beneficiary of the trust is. With a few exceptions, the object must be
human beneficiaries and they must be certain or capable of being rendered certain. Where it
is not clear who the beneficiary is, the trust simply cannot be valid because the trustee
wouldn't know to whom they should transfer the property.
Types of Certainty
 Specified individuals (“Chernoh and Lamrana”)

 Defined class (“the employees of the Sierra Leone Law School” or “my relatives”).
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 Conceptual vs evidential certainty
 Conceptual Certainty
Conceptual certainty refers to the language used by the settlor to define the objects or
subject matter of the trust. The definition must be precise so that the trustees can carry
out the trust.
 Conceptual V. Evidential Uncertainty

Before examining the di4erent tests for certainty of objects, it is necessary to understand the
different types of uncertainty:
 Conceptual
 Evidential
Examples of Conceptual Certainty
 Re Baden's Trusts (No 2) [1

Trust for, inter alia, “dependents” and “relatives” The court found these terms were
conceptually certain.
“Relatives”
- Stamp LJ: next of kin or nearest blood relative
- Sachs LJ &Megaw LJ: all descendants of a common ancestor
- no conceptual uncertainty
- Megaw LJ: ordinary, well understood word.
An example of a conceptually uncertain class of beneficiaries would be “friends” as the
meaning of this word changes subjectively as Browne-Wilkinson.J explained in the
following case:
Re Barlow’s Will Trusts (1979) 1 WLR 278

Browne-Wilkinson J: “ (Friends) has a great range of meaning; indeed its exact
meaning probably varies from person to person. Some would include only those with whom
they had been on intimate terms over a long period; others would include acquaintances
who they liked. Some would include people with whom their relationship was primarily
one of business; others would not. Indeed, many people, if asked to draw up a complete
list of their friends, would probably have some difficulty in deciding whether certain people
they knew were really “friend” as opposed to “acquaintances”.
EVIDENTIAL UNCERTAINTY
It refers only to the difficulty of proving whether a person falls within the class. Evidential
uncertainty concerns whether the trustee has enough factual information to determine
which people match the definition of the beneficiary?
 It is needed to ensure the trustee gives the product to the right people.
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 Re Wright's Will Trust

A trust was designed to benefit “such people and institutions as have helped me or my
late husband” It was held that there was no trust as it was impossible to identify what the
settlor meant by the word “help”.
FIXED TRUST vs DISCRETIONARY TRUSTS

Whether evidential certainty is required for a trust to operate depends on the type of trust in
question, in particular whether the trust is:
 Fixed, or
 Discretionary
FIXED TRUST
A fixed trust is one where both the identity of the beneficiaries and the proportion of property
they should receive is specified by the settlor. The beneficiaries might be named
individually (e.g., “Chernoh and Lamrana”) or defined by reference to a class (e.g., “my
children”). The trustee must distribute accordingly to settlor’s intentions, so no discretion.
For example: “Le 1,000 to be divided amongst my children equally.”
RULE ON WHEN THERE IS CERTAINTY OF OBJECTS
A fixed trust is void unless each and every beneficiary is ascertainable
 Ot Computers Ltd V First National Tricity Finance Ltd

The claimant (OT Computers) was a retailer of computer products. In 2002, the claimant
instructed its bank to open two separate trust accounts for the payment of “customer
deposits” and moneys owed to “urgent suppliers”. On the claimant going into receivership,
the bank sought to use up the money held in the two accounts to pay up the loan that the
claimant owed to it.
It was held that a trust in favour of the customers was upheld because the beneficiaries could
be identified in the context of the payments made by them to the company.
THE RULE IN DISCRETIONARY TRUSTS

In a discretionary trust the trustee is given the discretion to select, from amongst a specified
class of beneficiaries (e.g., “my children”) who will benefit under the trust and often when
and to what extent. The settlor gives the trustee the discretion to select which of the
potential beneficiaries should benefit from the trust. Trustee must exercise discretion
A discretionary trust will be valid even if a complete list' of beneficiaries might be

impossible to be drawn up due to practical
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The test to be applied in case of discretionary trusts is the "class test", which requires the
trustee to consider whether it could be said with certainty of any given individual that he
is or is not a member of the class.
 Mcphail V Doulton
A discretionary trust was established to provide benefits for the staff of Matthe Hall &Co.
Ltd, their relatives and defendants. The objects of the trust, therefore, were so numerous
and wide- ranging that it was impossible for the trustee to draw up an exhaustive list of
potential beneficiaries.
It was held that the trust was valid because it was possible to state in relation any given
individual whether they belonged to the class of “staff, relatives and dependants” of the
company.
EXPRESS TRUST
Introduction
For a Trust to be valid the 3 certainties must be present
a. Certainty of intention
b. Certainty of subject matter
c. Certainty of object
But fulfilling the three certainties is not the only requirement which must be met by a trust
in order for it to be valid.
Definition of Express Trust

Trust which was intentionally created by the settlor. It is the most simple and
straightforward type of a trust - an express trust.
Are Expressed Trust Valid?

The courts will assess two things in determining the validity of express trust:
1. Whether the trust meets the requirements of the three certainties
2. Whether the express trust meets the so called “formality requirements”
Assessing The Validity of an Express Trust
STAGE 1: Three certainties
Does the trust meet the certainty of intention, subject matter and objects requirements?
YES NO. (Express trust is not valid)
STAGE 2: Formality requirements
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Does the trust meet the formality requirements?
YES! Trust is valid NO! Express trust is not valid (in most cases)
Formality Requirements which must be met in order for an Express Trust to be Valid
 Formality Requirements: Land

This term includes not only land but also buildings and other structures placed on land.
Declarations of trust with respect to land must be done in writing. No special form of writing
is prescribed, but the material terms of the trust must be included in a document. The
document must be signed by the settlor
 Formality Requirements: Tangible Property
This term includes property which can physically be touched (e.g. cars, desks, cattle, k oks)
Declarations of trust with respect to tangible property require physical delivery of the
property, or a formally executed deed of gift
 Formality Requirements: Intangible Property

This term includes property which cannot physically be touched (e.g. patents, copyrights,
branding). Declarations of trust with respect to intangible property require a written
document
 Formality Requirements: Shares
This term relates to company shares (i.e. certificates confirming ownership of a part of
company). Declarations of trust with respect to company shares require the transfer of
share certificates and registration of the new ownership of shares.
What happens if the trust meets the 3 certainties requirements,but fails to meet the formality
requirements?
An express trust which doesn’t meet the formality requirements is known as an 'incomplete
trust' and it is not valid. However, there are certain rules of equity which allow the courts to
decide that an express trust is valid even though it doesn't meet the formality requirements.
This process is called ‘completing an incomplete trust’ and the courts will only do it if
it would be unfair to declare a trust invalid.
Completing Incomplete Express Trusts

In some cases, the courts will bend the rules a bit and decide that a trust is valid even if it
a does not meet the formality requirements, because it would be unfair or “inequitable' to
decide otherwise.”
There are five main rules of equity which the courts will rely on to make an incomplete trust
H. JOHNSON
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complete, i.e., to declare it valid. They are:
Rules to make an Incomplete Trust complete

1. Every effort rule,
2. Rule in strong v bird,
3. Rule on donatio mortis causa,
4. Rule on proprietary estoppel and
5. Rule against fraud.
Trusts Created Through Self- Declaration

This is where the settlor and the trustee are one and the same person. Here, instead of asking
someone else to hold the property on trust for the beneficiary the settlor simply declares
themselves as trustee of that property for the beneficiary. By doing so the settlor e4ectively
admits that the no longer own the property, but that they are merely keeping it on behalf of
the beneficiary, so that one day they can give it to the beneficiary.
For example
Imagine that your grandma visits you one day and tells you this: “I haven't been feeling so
well lately, I don’t know how long I have left. I want you to have my company shares”.
She then hands over the share certificates to you.
Rules on when courts will complete Incomplete Express Trusts with trustee
1. Every Effort Rule
The court will complete an incomplete trust which does not meet formality requirements
where the settlor has done everything within their power to transfer the property. See the
case of-
Re Rose
Settlor attempted to put some company shares which he owned on trust by transferring to
the trustee in March. He completed the necessary documents and delivered them to the
company where shares were held, instructing it to register the transfer. According to
formality requirements in order for the trust to be valid the transfer had to be registered
during the settlor's life. The transfer of shares was registered by the company in June, but
the settlor had died before that.
Held
It was held that the trust was valid because the settlor did everything in his power to transfer
his shares on the date of transfer in March.
2. Rule Against Fraud

The court will complete an incomplete trust which does not meet formality requirements
where failure to do so would amount to fraud. See the case of -
H. JOHNSON
28
Rochefoucauld V Boustead
Land was transferred to the defendant on the understanding that it would be held on trust
for the Comtesse de la Rochefoucauld. According to formality requirements in order for
the trust to be valid the transfer had to be put in writing. However, this was never actually
done. The defendant mortgaged the property. The Comtesse sought a declaration that the
defendant held the property on trust. The defendant argued the trust was not enforceable
due to lack of writing.
Held
It was held that the trust was valid because to deny the existence of the trust would
amount to a fraud on the Comtesse.
Rules on when courts will complete incomplete express trustswith self- declaration
3. Rule in Strong V Bird
The court will complete an incomplete trust with self-declaration which does not meet
formality requirements where the following conditions are met:
(a) settlor/trustee has the intention to pass the property to the beneficiary,
(b) this intention to pass the property to the beneficiary continues until the settlor/trustee's
(c) death, settlor/trustee appoints the beneficiary as an executor of their estate.
4. Rule on Donatio Mortis Causa
The court will complete an incomplete trust with self-declaration which does not meet
formality requirements where the following conditions are met:
(a) Settlor/trustee has been expecting to die,
(b) Settlor/trustee delivered the property to the beneficiary
(c) Transfer of property to the beneficiary was conditional on the settlor/trustee dying.
5. Rule on Proprietary Estoppel

The court will complete an incomplete trust with self-declaration which does not meet formality
requirements where the following conditions are met:
(a) Settlor/trustee made a representation which made the beneficiary believe that they would be given
the property
(b) Beneficiary acted to their detriment
(c) Beneficiary did it by relying on the representation and in belief that they would be given the
property.
IMPLIED TRUSTS
H. JOHNSON
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Trust which was not created by the parties but which the court imposed on the parties to
avoid injustice
Types of Implied Trust

There are two main types of trusts which the courts might impose on parties:
i. Constructive Trust
ii. Resulting Trust.
i. CONSTRUCTIVE TRUST
A constructive trust arises where it is clear that a person made another act to their detriment
in the belief that fi they do it, they will receive a certain property.
ii. RESULTING TRUST

The resulting trust is a bit different. It is usually imposed where a person is given property
for free and it would be unfair for them to keep it.
CONSTRUCTIVE TRUSTS
Condition For Imposing Constructive Trusts

The current rules on when the courts will impose a constructive trust come from the case
of Lloyds Bank v Rosset where it was held that two conditions must ǎe met for a
constructive trust to be imposed:
1. common intention and
2. detriment.
Firstly, it must be clear that there was a common intention between the parties that the
property would be transferred from one person to another fi the second acted in a certain
way.
Secondly, it must be established that the person who was supposed to receive the property
acted to their detriment.
Elements of Constructive Trust (Lloyds Bank V Roset)
Common Intention + Detriment = Constructive Trust
Common intention can be established where there is evidence of express discussions

between the parties about the existence of a trust. See the case of:
 Lloyds Bank V Rosset

Mr. and Mrs. Rosset became interested in purchasing a family home. Mrs. Rosset found a
cottage which required significant renovation. Mr. Rosset purchased the cottage in his name
H. JOHNSON
30
with his own money and Mrs. Rosset managed the renovation works but did not contribute
to them financially. The couple did not discuss Mrs. Rosset' ownership of the cottage. The
question for the court was whether Mrs. Rosset owned a beneficial interest in a proportion
of the cottage which Mr. Rosset was holding for her under a constructive rust
Held
It was held that Mrs. Rosset did not own a beneficial interest in the cottage. There was
insufficient evidence of common intention that Mrs. Rosset should own a beneficial interest
in the cottage. Therefore, there was no constructive trust.
Another principle under the Rules on establishing Constructive Trusts
 The court will recognize express common intention even if theparties did not agree
on the exact share of the property.
Drake V Whipp
Mrs. Drake and Mr. Whipp purchased a barn together for £25,000 in order to convert it to
their home. Mrs. Drake provided 40% of the amount and Mr. Whipp provided 60% of it.
The barn was purchased in Mr. Whipp's name only. Mrs. Drake paid the vast majority of
the conversion costs. They both worked on the conversion, with Mr. Whipp performing
70% of the work and Mrs. Drake performing 30% of the work. The parties agreed that Mrs.
Drake would own a proportion of the property. Mrs. Drake assumed ti would be 50% and
Mr. Whipp assumed it would be in proportion to her contribution.
Held
It was held that even though the parties did not agree on the exact proportion of Mrs. Drake's
beneficial interest in the barn the court recognized that she owned 30% of the barn which
Mr. Whipp was holding on constructive trust for her. There was no requirement that the
parties had to agree on the exact proportion of the beneficial interest in order to recognize
a constructive trust.
 Express common interest will not be established if in order to do so the court would
have to rely on evidence of illegality
Barrett v Barrett
Mr. Barrett owned property on which he was paying a mortgage. He risked losing the
property when he became bankrupt and the property was about to be transferred to trustee
in bankruptcy for sale. His brother purchased the property from him for a very small amount
of money in order to illegally avoid the property being sold to someone else, and the brothers
agreed that Mr. Barrett's brother would hold the property on trust for him. Mr. Barrett also
continued paying the mortgage payments. The question was whether the court would
recognize that Mr. Barrett's brother was holding the property on constructive trust for Mr.
Barrett despite the fact that the purpose of the trust was illegal (i.e. avoiding a lawful process
of sale by the trustee in bankruptcy).
Held
H. JOHNSON
31
It was held that there was no constructive trust. The purpose of the agreement was to evade
the rules of bankruptcy, which was illegal. Mr. Barrett could not establish an interest
without having to rely on the unlawful purpose to establish the common intention.
 Detriment
Second rule on establishing constructive trusts is making a direct contribution to the
purchase price of the property will count as detriment. See the case of: Lloyds Bank V Rosset
Carrying out significant improvement works to the property will count as detriment.
See the case of: Eves V Eves
Making a contribution to the household expenses will count as a determent. See the case
of Grant V Edwards
RESULTING TRUSTS
A resulting trust is where the trustee holds property on trust for the settlor. Resulting trusts
arise from di4erent circumstances but in its basic form its where: A transfers property to B
and B ends up holding that property on trust for A. The beneficial interest results (comes
back) to the settlor.
Example
This occurs in situations where the settlor of an express trust fails to tell the trustees what to
do with the trust property (or part of it). For example, Chernoh sets up a discretionary trust
for the benefit of his siblings, but does not say what is to happen to the trust fund once his
siblings have died. His siblings die, and there are assets still held in trust. The trust assets are
therefore held on a resulting trust for Chernoh (or his estate).
Question
A purchaser fails to give a seller agreed consideration in exchange for receiving property.
To whom does the beneficial interest in the property lie?
Answer
Beneficial interest in the property results back to the seller.
CHARACTERISTICS OF RESULTING TRUSTS
Resulting trusts are implied because it comes into being not because of the design of the
settlor but because equity says some particular circumstances have given rise to a trust. The
essential characteristics of a RT is that the settlor is also its beneficiary. The RT redirects
the beneficial interest of the trust, back to the former title owner.
Just like constructive trusts, resulting trusts are implied by the courts. But unlike
constructive trusts, there is no need or the parties to meet any conditions. Instead, the courts
will simply impose a resulting trust to return the property to its rightful owner in four specific
H. JOHNSON
32
situations. Those are:

a. Property was transferred under a trust which turns out to be invalid,
b. Excess property is left under the trust,
c. Property is transferred for no consideration (i.e. for free)
d. Contribution to the purchase price of the property bought in the name of another.
TYPES OF RESULTING TRUSTS

There are two types of Resulting Trusts:
1. Automatic Resulting Trusts
2. Presumed Resulting Trusts
1. AUTOMATIC RESULTING TRUSTS

An automatic resulting trust will arise where a settlor transfers property to the intended
trustee under an express trust but the trust fails for some reason. Automatic resulting trust
arises when -
 Property was transferred under a trust which turns out to be invalid
 Excess property is left under the trust
For automatic resulting trusts the courts will simply impose a trust and order for the
property to be transferred back to the beneficiary, with no chance for either of the parties to
argue that there was no resulting trust.
2. PRESUMED RESULTING TRUSTS
Presumed resulting trusts arise either from voluntary transfer of the legal estate or by
contributions to the purchase price. In these situations, it is presumed that the person did
not intend to make a gift of the property or money unless there a clear intention that they did
so intend. In such circumstances a resulting trust arises and the transferor or the person
making the contribution retains or takes a share in the beneficial interest.
A presumed resulting trust arises when -
 Property is transferred for no consideration ( i.e. for free) and
 Contribution to the purchase price of the property bought in the name of another.
Presumed resulting trusts work a bit differently from Automatic resulting trusts. Where the
court sees that a specific situation occurred, it raises a presumption that a resulting trust
should be imposed. This presumption is rebuttable.
Automatic V. Presumed Resulting Trusts

Both of those trusts operate in the same way:
 a property was transferred to a specific person,
 the court decided, that the person who received the property (trustee) was only
holding it under a resulting trust for the person who transferred it (beneficiary),
H. JOHNSON
33
 the property is returned to the beneficiary.
Situations in which the court will recognized an Automatic Resulting Trust
An automatic resulting trust will arise where a settlor transfers property to the intended
trustee under an express trust but the trust fails for some reason. Automatic resulting trust
arises when -
 Property was transferred under a trust which turns out to be invalid,
 Trust becomes invalid

The courts will impose an automatic resulting trust to return the property which the settlor
passed to the trustee where an express trust failed.
Re Ames Settlement
Mr. Ames and Miss Hamilto married in 1908. Mr. Ames' father transferred £10,000 to the
couple as a wedding gift Mr. Ames and Miss Hamilton lived together for a number of years
until 1926 when their marriage was declared void. The question was whether the £10,000
belonged to the couple or fi the couple was merely holding it on trust for the father of Miss
Hamilton.
It was held that given that the father had transferred the money on the basis that there was
a valid marriage, but the marriage turned out to be void, the money was held on a resulting
trust for the father's estate.

Where a trust is valid but excess property is left under the trust which cannot ǎe distributed
to the beneficiary, the excess funds will be held on automatic resulting trust for the settlor.
Re Trusts of the Abbot Fund

Dr Abbott had two deaf and u m ǎ daughters and died in 1844, leaving a trust fund to support
them. By 1899 the money was exhausted. The money was held on resulting trust for the
subscribers. Dr Fawcett raised a fund from friends to support the two ladies. By 1899 both
daughters were dead but there was money left in the fund .
Held
The money was held on resulting trust for the subscribers
Situations in which the court will recognized an Presumed Resulting Trust
Presumed resulting trusts arise either through voluntary transfer of property or by payment of
contribution to the purchase price of property. A presumed resulting trust arises when -
 Property is transferred for no consideration (i.e. for free) and
H. JOHNSON
34
 Contribution to the purchase price of the property bought in the name of another.
 Property transfer for no consideration

Where property is transferred for no consideration a rebuttable presumption arises that the
person who received the property ' holds it on a resulting trust for the person who gave it to
them. See the case of
Re Vinogradoff
Mrs. V transferred for free some shares into the name of her granddaughter. The question
was whether the shares belonged to the granddaughter or fi they were only held by the
granddaughter under a presumed resulting trust for her grandmother. The court imposed
the presumption of resulting trust. The shares did not belong to the granddaughter but were
only held by her under a presumed resulting trust for her grandmother.
 Contribution To Purchase Price of Property

Where a purchaser contributes to the purchase price of property bought in the name of
another a rebuttable presumption arises that the owner of the property holds on a resulting
trust for the contributor a share of property proportionate to the contribution made
See the case of:
Gissing V Gissing
Is a case that deals with the presumption of resulting trust. A contribution to the purchase
price will give rise to a presumption of resulting trust meaning the person that makes the
contribution will take a share in the equitable ownership of the property in proportion to their
contribution. The case held that the courts had no power to just distribute family property
according to what was 'just'. Rather a constructive trust could only arise on the basis of
common intentions.
RULES ON REBUTTING THE PRESUMPTION OF RESULTING TRUST
 Intention To Make an Outright Gift

Presumption of a resulting trust will be rebutted if there is evidence that the transfer of
property was intended to be a gift. See the case of:
Fowkes V Pascoe
Mrs. Baker had purchased annuities in the joint names of herself and Mr. Pascoe. Although
it was presumed that Mr. Pascoe held the annuities on resulting trust, this presumption was
easily rebutted through evidence to the e4ect that Mrs. Baker was wealthy, Mr. Pascoe was
living in her house, and she was already providing for him financially - all of which
suggested that she had intended him to have a beneficial interest in the annuity.
The presumption of resulting trust was held to be rebutted and the court did not impose a
resulting trust which would force Mr. Pascoe to return the annuities to Mrs. Baker.
H. JOHNSON
35
 Presumption of Advancement
When a parent passes property to their children, the law recognizes that there is no resulting
trust, because their exit’s a presumption that the property was meant to be given to the child
as a gift. See the case of:
Re Roberts
 Intention to Make a Loan

Presumption of a resulting trust will be rebutted fi there is evidence that the payment made
was intended to be a loan. See the case of:
Vajpeyi V Yusaf
The claimant who had given the defendant money to buy a house, failed in her claim to
recover the house under a resulting trust. Based on the evidence of conversations between
the parties, the money was given as a loan and, therefore, the presumption of a resulting
trust was rebutted and a resulting trust was not imposed.
 Evidence of Illegality
The court will not allow a party to rely on evidence of their own illegal conduct to reǎut the
presumption of a resulting trust. See the case of:
Tinsley V Milligan
PURPOSE TRUSTS
A trust in which the property is to be spent by the trustee for a particular purpose instead of
being passed to a specific beneficiary. Purpose trusts are most commonly created as part of
a will, i.e. a document which specifies what should happen to a person's property after their
death.
TYPES OF PURPOSE TRUSTS:
1. PRIVATE PURPOSE TRUSTS

Private purpose trusts are trust under which the property is to distributed for a specific
purpose that is not a charitable purpose. Example: “I leave Le100,000 to chernoh to spend it
for the maintenance of my dogs for 5 years”
Private purpose trusts are trusts which were created not in favour of a particular person
(i.e. the beneficiary), but for a specific. This purpose has nothing to do with being charitable
or donating money to charities. It is simply a description of a specific way in which the
money under the trust is to be spent. purpose.
Example
Bishop Campbell writes a will that after his death he would like his son to hold Le
H. JOHNSON
36
1,000,000 as trust and spend this money on building a church in his honour.
Question
Is this an ordinary express trust?
Why Not?
Because there is no beneficiary (known as the 'beneficiary principle')
 Bishop Campbell is the settlor, and
 his son is the trustee
But who would be the beneficiary?
 Is it the church?
 It’s not clear, is it?
2. PUBLIC PURPOSE (CHARITABLE) TRUSTS

Public purpose (i.e. charitable) trusts are trusts under which the property is to be distributed
for a specific charitable purpose. Example: “I leave Le100,000 to Lamrana to spend it
as scholarships for prospective Law School students from poor families"
THE GENERAL RULE FOR PRIVATE PURPOSE TRUSTS

Private purpose trusts are void and cannot be enforced in courts. The reason for this is that
there are many problems with private purpose trusts including the main one which is the
absence of a beneficiary.
The Problems with Private Purpose Trusts

a) Beneficiary principle
b) Perpetuity
c) Uncertainty
d) Capriciousness
e) Administrative Workability
a) BENEFICIARY PRINCIPLE
The essence of the beneficiary principle is that for a trust to exist, there must be someone
other than the trustee who has the real beneficial ownership of the trust property. If there is
no such person, e n not only is there no person to enforce obligations against the trustee,
but more fundamentally, there are no trust obligations to enforce, for the legal owner
owns it for his own benefit absolutely.
Leahy V AG of Texas New South Wales

According to Viscount Simonds: " gift can be made to persons (including a corporation)
but it cannot be made to a purpose or an object.
Re Endacott
A trust was created which required the trustee to distribute money for "the provision of some
useful monument to (the settlor!". It was held that the trust was not valid because of the
lack of a beneficiary.
H. JOHNSON
37
b) PERPETUITY
This rule says that property should not be held in trust forever; it must vest absolutely in
someone at some point. There are two rules:
1. Rule against the remoteness of future vesting (future interests must vest in
beneficiaries at some point), and
2. Rule against inalienability (property must not be tied up indefinitely).
The common law period is life in being + 21 years, meaning the life of some specified person
alive at the time the trust was created +21 years. Within that time the property has to vest
absolutely in someone.
For example, a disposition that would not violate the perpetuity period is: “To A for life,
thereafter to B” because it would vest absolutely in B within the 21 years after A died.
A purpose would violate the rule against inalienability unless it vests absolutely in a person
within the life and being +21 years. For example, “this house to be used on trust for dance
parties”, would violate the perpetuity rule because the property would be tied up forever.
Had it been “this life to be used for dance parties for the life of Lamrana + 18 years,
thereafter to Chernoh”.
c) UNCERTAINTY
The purpose of the trust must be clear. See the case of
Re Astor's Settlement Trusts

A trust was created which required the trustee to distribute money from the trust for the
“maintenance of good understanding between nations” and “the preservation of the
independence and integrity of newspapers”. It was held that the trust was not valid because
it was not clear how the money should be spent.
d) CAPRICIOUSNESS
The purpose of the trust must not be useless, wasteful, harmful or illegal. See the case of:
Brown V Burdett
A trust was created which required the trustee to ǎlock up all the rooms in the settlor's house
for a period of 20 years.It was held that the trust was not valid ǎecause the purpose of
the trust was capricious.
e) ADMINISTRATIVE WORKABILITY
The trust should be practically possible to be enforced See the case of:
R V District Auditor
H. JOHNSON
38
A trust was created which required the trustee to distribute the trust money “for the benefit
of the inhabitants of the County of West Yorkshire". The challenge was that there were
twenty-five million of such inhabitants.
The trust was not valid because it would have been practically impossible to distribute the
money under the trust.
EXCEPTIONS TO THE BENEFICIARY PRINCIPLE

The general rule is that it is the principle which state that for a trust to be valid it must have
a human beneficiary who can enforce the trust.
 Individual Benefit
A purpose trust will be valid if it is for the benefit of one or more ascertainable individuals.
See the case of:
Re Denley's Trust Deed
A trust was created which required the trustee to maintain the land of the settlor and make
it available for use for recreation or sports for the employees of a specific company. It was
held that the trust was valid even though there was no beneficiary.
 Monuments and Graves

A purpose trust will be valid if it is for the purpose of building (but not maintaining) a
monument or grave. See the case of:
Mussett V Bingle
A trust was created which required the trustee to build a monument in memory of the
settlor's wife's first husband. It was held that the trust was valid even though there was no
beneficiary.
 Maintenance of Specific Animals

A purpose trust will be valid if it is for the purpose of maintaining specific animals.
See the case of:
Re Dean
A trust was created which required the trustee to spend £750 per year for a period of 50 years
for the maintenance of his horses and hounds “if they should live that long”. It was held that
the trust was valid even though there was no beneficiary
 Promotion of a particular activity

A purpose trust will be valid if it is for the purpose of promoting a particular activity.
See the case of:
Re Thompson
A trust was created which required the trustee to apply a sum of £1,000 in such manner as
H. JOHNSON
39
he thought fit towards the “promotion and furtherance of fox hunting”. It was held that the
trust was valid even though there was no beneficiary.

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H.

EQUITY AND TRUST

1. The exploitation of vulnerability or weakness.

THE PROBLEMS OF THE JUDICATURE АСТ

law, this position is not 'different.

1. HE WHO SEEKS EQUITY MUST DO EQUITY

2. HE WHO COMES TO EQUITY MUST COME WITH CLEAN HANDS

responsibilities are concerned. It applies in three broad circumstances namely:

 the presumption of tenancy in common,

4. EQUITY WILL NOT SUFFER A WRONG TO BE WITHOUT A REMEDY

Application of the maxim

5. EQUITY SEES AS DONE THAT WHICH OUGHT TO BE DONE:

6. EQUITY LOOKS AT INTENT RATHER THAN FORM

7. EQUITY ACTS IN PERSONAM:

 Committal to Prison: In matters peculiar to property where a person refused to convey

8. EQUITY FOLLOWS THE LAW (BUT NOT SHEEPISHLY OR SLAVISHLY)

9. DELAY DEFEATS EQUITY (DOCTRINE OF LACHES)

 Allard v. Skinner (1887)

10. EQUITY IMPUTES AN INTENTION TO FULFILL AN OBLIGATION

11. WHERE EQUITIES ARE EQUAL, THE FIRST IN TIME PREVAILS

The rule in Dearle v Hall (1828) 3 Russ I.

12. EQUITY DOES NOT ACT IN VAIN

THE NATURE OF TRUSTS

 PROFESSORS KEETON AND SHERIDAN IN THE LAW OF TRUSTS 11TH EDITION

 HAYTON & MARSHALL, LAW OF TRUST AND EQUITABLE REMEDIES

 HAGUE CONVENTION ON THE LAW APPLICABLE TO TRUSTS AND ON THEIR

KEY FEATURES OF A TRUST

THE THREE CERTAINTIES

RULES ON WHEN THERE IS CERTAINTY OF INTENTION

 Re Adams and Kensington Vestry

2. CERTAINTY OF SUBJECT MATTER

Rules on when there is certainty of subject matter

 Re London Wine Company

3. THE CERTAINTY OF OBJECTS

 Speciﬁed individuals (“Chernoh and Lamrana”)

 Conceptual vs evidential certainty

 Conceptual V. Evidential Uncertainty

Examples of Conceptual Certainty

 Re Baden's Trusts (No 2) [1

Re Barlow’s Will Trusts (1979) 1 WLR 278

 Re Wright's Will Trust

FIXED TRUST vs DISCRETIONARY TRUSTS

RULE ON WHEN THERE IS CERTAINTY OF OBJECTS

A fixed trust is void unless each and every beneficiary is ascertainable

 Ot Computers Ltd V First National Tricity Finance Ltd

THE RULE IN DISCRETIONARY TRUSTS

A discretionary trust will be valid even if a complete list' of beneficiaries might be

Definition of Express Trust

Are Expressed Trust Valid?

Assessing The Validity of an Express Trust

STAGE 1: Three certainties

YES NO. (Express trust is not valid)

STAGE 2: Formality requirements

Does the trust meet the formality requirements?

 Formality Requirements: Land

 Formality Requirements: Intangible Property

Completing Incomplete Express Trusts

complete, i.e., to declare it valid. They are: