Ali v Khan [2002] EWCA Civ 974) Attorney General for Hong Kong v Reid Blackwell v Blackwell, Bourne

v Keane [1919] Boyce v Boyce Burrough v Philcox (1840) Chaine-Nickson v Bank of Ireland [1976] IR 393 Chase Manhattan Bank NA v Israel-British Bank (London) Ltd Cowan v scargil [1985] Dillwyn v Llewelyn [1862] EWHC Ch J67 DKLR Holdings Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] Earl of Oxford's case Fowkes v Pascoe (1875) LR 10 Ch App 343, Gissing v Gissing [1970] UKHL 3 Goodman v Gallant ([1986] 2 WLR 236, [1986] 1 All ER 311 IRC v. Broadway Cottages Trust Jones v Lock (1865) 1 Ch App 25 Knight v Knight (1840) 49 ER 58 Leahy v. Attorney-General for New South Wales [1959]; McPhail v Doulton [1970] UKHL 1 Milroy v Lord [1862] EWHC J78 Morice v Bishop of Durham [1805] EWHC Ch J80 Mussett v Bingle [1876] Palmer v. Simmonds (1854) Paul v Constance Paul v Constance [1977] 1 WLR 527 Pennington v Waine [2002] Pettingall v. Pettingall, [FN32] Pilkington v IRC 1964 Re Adams and Kensington Vestry 1884 Re Astors Settlement Trusts *1952+; Re Barlows Will Trusts *1979+ Re Bowes [1896] 1 Ch 507 Re Clores Settlement Trusts; ChD 1966 Re Denleys Trust Deed *1969+ 1 Ch 373 Re Ellenborough [1903]Re Endacott [1959] EWCA Civ 5 Re Golay Re Goldcorp Exchange Ltd [1995] 1 AC 74 i Re Grants Will Trusts *1979+ 3 All ER 359 Re Hooper [1932] Re Kayford Ltd [1975] 1 WLR 279 Re Lipinskis Will Trusts *1976+ Ch 235 Re London Wines Co (shippers) Ltd, Re Londonderry's Settlement [1965] Ch 918 Re Rallis Will Trusts *1964+, Re Tucks Settlement Trusts *1977+

Re Vandervell's Trusts (No 2) [1974] Ch 269 Re Vesteys Settlement *1951+ Richards v Delbridge (1874) LR 18 Eq ROCHEFOUCAULD v BOUSTEAD[1897] 1 Ch 196 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 Saunders v Vautier (1841) Stack v Dowden ([2007] UKHL 17, [2007] Strong v Bird [1874] LR 18 Eq 3 T Choithram International SA v Pagarani and Others [2001] Thynn v Thynn (1684) Vandervell v Inland Revenue Commissioners [1967] 2 AC 291 Warren v Gurney [1944] 2 All ER 472 Westdeutsche Landesbank Girozentrale v Islington LBC 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Attorney General for Hong Kong v Reid Bourne v Keane [1919] Boyce v Boyce Burrough v Philcox (1840) Chaine-Nickson v Bank of Ireland [1976] IR 393 Chase Manhattan Bank NA v Israel-British Bank (London) Ltd Cowan v scargil [1985] DKLR Holdings Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980] Earl of Oxford's case Gissing v Gissing [1970] UKHL 3 Jones v Lock (1865) 1 Ch App 25 Knight v Knight (1840) 49 ER 58 McPhail v Doulton [1970] UKHL 1 Milroy v Lord [1862] EWHC J78 Morice v Bishop of Durham [1805] EWHC Ch J80 Mussett v Bingle [1876] Palmer v. Simmonds (1854) Paul v Constance Paul v Constance [1977] 1 WLR 527 Pettingall v. Pettingall, [FN32] Pilkington v IRC 1964 Re Adams and Kensington Vestry 1884 Re Barlows Will Trusts *1979+ Re Clores Settlement Trusts; ChD 1966 Re Ellenborough [1903]Re Endacott [1959] EWCA Civ 5 Re Golay Re Goldcorp Exchange Ltd [1995] 1 AC 74 i Re Hooper [1932] Re Kayford Ltd [1975] 1 WLR 279 Re London Wines Co (shippers) Ltd, Re Londonderry's Settlement [1965] Ch 918 Re Tucks Settlement Trusts *1977+ Re Vandervell's Trusts (No 2) [1974] Ch 269 Re Vesteys Settlement *1951+ Richards v Delbridge (1874) LR 18 Eq Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 Saunders v Vautier (1841) T Choithram International SA v Pagarani and Others [2001] Vandervell v Inland Revenue Commissioners [1967] 2 AC 291 Westdeutsche Landesbank Girozentrale v Islington LBC

Ali v Khan [2002] EWCA Civ 974) Attorney General for Hong Kong v Reid

The registered proprietors will either be beneficial tenants n common, or bare trustees for a third party It was held that bribe money accepted by a person in a position of trust, can be traced into any property bought and is held on constructive trust for the beneficiary Mr Charles Warwick Reid was the Hong Kong Deputy Crown Prosecutor and then Acting Director of Public Prosecutions, so in a fiduciary relationship with the Hong Kong government. He took bribes to obstruct prosecution of some criminals, and used the money to buy land. Some was kept by Mr Reid and his wife, Mrs Judith Margaret Reid, some conveyed to Reids solicitor. The Hong Kong government argued the land was held on trust for them. The Privy Council advised the bribe money received by Reid, and the land acquired after, was held on constructive trust for the Hong Kong government. This meant that the land bought by Reid and his wife was held on trust, and had to be given over to the Hong Kong government. This was held to be necessary to ensure that people in positions of trust could in no way profit from their wrongdoing. If the property was badly invested, the fiduciary in breach would still be under a duty to make good the shortfall. Lord Templeman delivered the advice of the Board.

Blackwell v Blackwell,

In Blackwell v Blackwell, Lord Viscount Sumner described as *seeming+ to be a perfectly normal exercise of general equitable jurisdiction whereby the Court of Conscience does not allow the secret trustee to retain legally owned property. The court of conscience to which he refers is equity; and he explained the equitable obligation of the secret trustee as acting on his conscience therefore compelling the trustee to perform the testator's intentions. The fraud theory is integral to the argument of this binding obligation whereby if the testator retains the property himself the fraud is committed. Trusts for the saying of private masses, are barely distinguishable from public masses. Only Re Hetherington [1990] Ch 1 divided the two, somewhat dubiously, because only if the prayer can be publicly be witnessed can it be for the publics benefit. Boyce v Boyce 16 where the testator left "four houses in trust, one for Maria, to do with whatever she shall choose and the other three to Charlotte." Maria predeceased the testator. The effect of this was to cause the gift to her to lapse. One of the houses thus fell into residue. It was held that Charlotte's gift failed for uncertainty as to her beneficial interest as it was impossible to decide which of the three houses she was entitled to. The result was that the four properties were held on resulting trust for the testator's estate. If Maria had survived the testator, then the trust would have been valid as Maria's estate could have made the choice and Charlotte would have been certain as to her beneficial entitlement. Certainly this trust could be said not to be acceptable as to the objects that it relates to. If the children reach the age of 25 then how exactly is the property to be split? This is very likely to prompt the court that the trust will fail.

Bourne v Keane [1919]

Boyce v Boyce

Burrough v Philcox (1840)

This relates to the issue of certainty of intention, and the certainty of objects, that are requisites of any trust. The rule is that the object, or each member of a class of objects, must be known and identifiable with certainty. Where this requirement is not met, the trust will fail. In the case of a Burrough v Philcox discretionary trust, the test for certainty is the so-called complete list test', which demands that a complete list of the objects be drawn up. Under such a trust, if the trustee fails to appoint the trust property, each individual object will take an equal share. This can be said to represent, then, an identifiable beneficial interest in the trust property to counterbalance the legal interest vested in the trustee. it is, to some extent, illusory, however, as this equal share will only apply in the case of default by the trustee. Chaine-Nickson v Bank of Ireland [1976] IR 393 was a decision of the High Court of Ireland (Kenny J). It was concerned with an application for disclosure of accounts and other information made by the beneficiary of what was described as a discretionary trust. But the report does not give an adequate summary of the trust. The only dispositive provision set out verbatim looks more like a power than a trust, as it begins upon trust to pay, divide or apply the whole or such part (if any) of the income and capital respectively thereof as [the trustees] shall from time to time in their absolute and uncontrolled discretion think fit .... It appears that initially the settlement infringed the rule against perpetuities and had to be corrected, but again the summary is terse. After stating the general rule that a beneficiary with a vested interest is entitled to disclosure Kenny J continued (at p 396): However, in the case of a discretionary trust, none of the potential beneficiaries have any right to be paid capital or income. All the trust fund is held by the trustees in this case on discretionary trusts and, if the plaintiff is not entitled to the trust accounts and particulars of the investments, it follows that none of the potential beneficiaries have a valid claim to any information from the trustees. The result is that the trustees are not under an obligation to account to anyone in connection with their management of the trust fund. This logical conclusion from the defendants argument leads to remarkable consequences. The amount of remuneration to which the trustees are entitled is specified in the settlement and the potential beneficiaries have an interest in seeing that the amount is not exceeded, for they are the persons who will ultimately benefit by payments of capital and income. The defendants contention, however, has the result that they do not have to account for or disclose the amount of their

Chaine-Nickson v Bank of Ireland [1976] IR 393

Chase Manhattan Bank NA v Chase Manhattan Bank NA v Israel-British Bank (London) Ltd is an English trusts law Israel-British Bank (London) Ltd case, concerning constructive trusts. It held that a trust arose to protect a payment made under a mistake, with the benefit of a proprietary remedy. This is seen important for the question of what response, personal or proprietary, may come from a claim in unjust enrichment. Chase Manhattan was instructed to pay $2m to the Israel-British Bank, but it paid the sum twice by mistake. The Israel-British Bank went insolvent, and Chase Manhattan wished to claim the money back, without waiting in the insolvency queue. The Israel-British bank had known about the mistake before it finally went into liquidation. Goulding J held that Chase Manhattan could recover the full sum, because the money was held on trust from the moment it was received. a person who pays money to another under a factual mistake retains an equitable property in it and the conscience of that other is subjected to a fiduciary duty to respect his proprietary right. Cowan v scargil [1985] The trustees of the National Coal Board pension fund had 3,000 million in assets.[3] Five of the ten trustees were appointed by the NCB and the other five were appointed by the National Union of Mineworkers. The board of trustees set the general strategy, while day to day investment was managed by a specialist investment committee. Under a new "Investment Strategy and Business Plan 1982" the NUM wanted the pension fund to (1) cease new overseas investment (2) gradually withdraw existing overseas investments and (3) withdraw investments in industries competing with coal. This was all intended to enhance the mines' business prospects. The five NCB nominated trustees made a claim in court over the appropriate exercise of the pension fund's powers. Mr JR Cowan was the deputy-chairman of the board. Arthur Scargill led the NUM and was one of the five member nominated trustees, and represented the other four in person.[4] Megarry VC held the NUM trustees would be in breach of trust if they followed the instructions of the union, saying the best interests of the beneficiaries are normally their best financial interests. So if investments of an unethical type would be more beneficial to the beneficiaries than other investments, the trustees must not refrain from making the investments by virtue of the views that they hold. Only if all beneficiaries, all of full age, consent to something different is it possible to invest ethically. His judgment outlined his view of the law.[5]

Dillwyn v Llewelyn [1862] EWHC Ch J67

In 1853 a father (who lived at Sketty Hall) wished to give his younger son (Lewis Llewelyn Dillwyn) an estate at Hendrefoilan in Wales, and thought he had done so by signing a memorandum presenting it to him for the purpose of furnishing himself with a dwelling-house. The memorandum was unfortunately not a deed. The son incurred great expense in building himself a house on the land. Two years later the father died and the elder son (John Dillwyn Llewelyn) disputed his younger brother's title. Sir John Romilly MR decreed that the younger son was entitled to a life interest, worth 14,000. Lord Westbury LC held that the younger son did not have merely an incomplete gift, but was in fact entitled to call for a legal conveyance, and not merely of a lifeestate, but of the whole fee-simple. He said the following

DKLR Holdings Co (No 2) Pty Ltd v Commissioner of Stamp Duties [1980]

An unconditional legal estate in fee simple is the largest which a person may hold in land. Subject to qualifications arising under the general law, and to the manifold restrictions now imposed by or under statutes, the person seised of the land for an estate in fee simple has full and direct rights to possession and use of the land and its profits, as well as full rights of disposition. An equitable estate in land, even where its owner is absolutely entitled and the trustee is a bare trustee, is significantly different. Having said that the essential character of the beneficiarys interest had to be understood in the context of the historical development of trusts from the medieval use, Hope JA continued (at 518): After some hesitation, a trust interest in respect of land came to be regarded, not merely as some kind of equitable chose in action, conferring rights enforceable against the trustee, but as an interest in property Hope JA then noted (at 519) several consequences flowing from that proposition: Firstly, an absolute owner in fee simple does not hold two estates, a legal estate and an equitable estate. He holds only the legal estate with all the rights and incidents that attach to that estate Secondly, although the equitable estate is an interest in property, its essential character still bears the stamp which its origin placed upon it. Where the trustee is the owner of the legal fee simple, the right of the beneficiary although annexed to the land, is a right to compel the legal owner to hold and use the rights which the law gives him in accordance with the obligations which equity has imposed upon him. The trustee, in such a case, has at law all the rights of the absolute owner in

Earl of Oxford's case

Earl of Oxfords case (1615) 21 ER 485 is a foundational case for the common law world, that held equitable principle takes precedence over the common law. A judgment of Chief Justice Coke was allegedly obtained by fraud. The Lord Chancellor, Lord Ellesmere, issued a common injunction out of the Chancery prohibiting the enforcement of the common law order. The two courts became locked in a stalemate, and the matter was eventually referred to the Attorney-General, Sir Francis Bacon. Sir Francis, by authority of King James I, upheld the use of the common injunction and concluded that in the event of any conflict between the common law and equity, equity would prevail. Equity's primacy in England was later enshrined in the Judicature Acts of the 1870s, which also served to fuse the courts of equity and the common law (although emphatically not the systems themselves) into one unified court system.

Fowkes v Pascoe (1875) LR 10 Ch App 343,

evidence was shown that a woman had purchased stock in the names of herself and her grandson; evidence by the grandson and granddaughter-in-law that this had been done as a gift was admissible. On the other hand, the presumption is solely concerned with evidence of an intent to create a trust; ulterior motives to create a trust are not taken into account.

Gissing v Gissing [1970] UKHL 3 The respondent spent money on furniture in the home and mowing the lawn and made no contribution to the payment of the mortgage. It was not possible to draw inference of a common intention from this. If there was no agreement on how the interest should be shared initially, the common intention can be evidenced by the conduct of the parties. E.g. contributions to the purchase price or contributions to mortgage payments. The wife had made no contribution to the acquisition of title to the matrimonial home from which it could be inferred that the parties intended her to have any beneficial interest in it. Goodman v Gallant ([1986] 2 WLR 236, [1986] 1 All ER 311 If a deed (such as a conveyance) contains an express declaration as to whether a coownership is a joint tenancy or a tenancy in common then this declaration is conclusive. The severance of a joint tenancy leads to each joint tenant having an equal share as tenant in common. In Goodman v Gallant ([1986] 2 WLR 236, [1986] 1 All ER 311, CA (Eng)) Goodman and Gallant were co-habitees. Their home had been conveyed into their joint names and the conveyance expressly provided that they were to hold as beneficial joint tenants. The Court of Appeal, Slade LJ giving the leading judgment, held that the express declaration was conclusive and that (in the absence of express words to the contrary in the conveyance) when a joint tenancy is severed the result is that the joint tenants hold as tenants in common in equal shares. The judgment of Slade LJ shows that there had been considerable doubt as to the correct law on each of these fundamentally important issues.

IRC v. Broadway Cottages Trust The case concerned the validity of a discretionary trust where it was admitted by the taxpayers "that it would be impossible at any given time to achieve a complete and exhaustive enumeration of all the persons then qualified for inclusion in the class of beneficiaries", but it was admitted by the Crown that it was "possible to determine with certainty whether any particular individual is or is not a member of the class." In other words, the individual, but not the class ascertainability test was satisfied, and the trust was held void. The case no longer represents the law, having been overruled in McPhail v. Doulton. Note that in this case and in Re Ogden [1933] Ch. 678, where the class ascertainability test was satisfied, the test is of an evidential rather than conceptual nature. However, the concessions made in Broadway that the class could not be ascertained were criticised in Gulbenkian, and the individual ascertainability test, which now applies to both powers and discretionary trusts, would seem to be a test of conceptual rather than evidential certainty.

Jones v Lock (1865) 1 Ch App 25

A father returned from a business trip without a gift for his son. When the family told him off, he put a 900 cheque in the babys 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. The wife said the baby might tear it, and the father said, it is his own, and he may do what he likes with it. He locked it in the safe and died six days later. It was argued that although there was never an outright transfer, because he had not actually endorsed the cheque by signing it, there was a trust of the cheque for the baby. The Court of Appeal in Chancery held that there was no trust, because the fathers intention was an outright transfer. They refused to perfect an imperfect gift through a successful declaration of trust. Lord Cranworth LC gave the judgment of the court.

Knight v Knight (1840) 49 ER 58 Richard Knight made a settlement on 26 April 1729, which passed the manors of Leintwardine and Downton, Herefordshire, including Croft Castle and Downton Castle, down the family line. The first grandson, of his second son, was Richard Payne Knight (a specialist on phallic imagery). He made a will on 3 June 1814, leaving the property to his brother, Thomas Andrew Knight (a horticulturalist), and to his male descendants. But if there were none, the property was to pass to the next descendant in the direct male line of my late grandfather, Richard Knight of Downton He had also said, however, I trust to the liberality of my successors to reward any others of my old servants and tenants according to their deserts, and to their justice in continuing the estates in the male succession, according to the will of the founder of the family, my abovenamed grandfather. Thomas son died early, and Thomas died intestate. His daughter, Charlotte, had married Sir William Edward Rouse Boughton. Richards second brother, Edward, had a grandson named John Knight, who brought a claim alleging that Thomas had been bound to make a strict settlement in favour of the male line. William Boughton argued that no such trust had been created and the property had in fact gone to Thomas absolutely, and thus on to Charlotte and his family. Lord Langdale MR held that the words of Richards will were not sufficiently certain, but that meant there had been an absolute gift to Thomas, who had taken the trust unfettered by any trust in favour of the male line. He formulated the test, known as the "three certainties". This test specified that, for a valid trust, there must be certainty of (1) intention (there must be intention to create a trust), (2) subject matter (the assets constituting the trust fund must be readily determinable) (3) objects (the people to whom the trustees are to owe a duty must be readily determinable). Leahy v. Attorney-General for New South Wales [1959]; Facts: A testamentary gift made by the widow of a wealthy man. Left residuary estate: *My homestead and furniture+ upon trust for such orders of nuns of the Catholic Church or the Christian Brothers as my executors and trustees shall select. Decision: This was a purpose trust in disguise. This was not a charity because not all religious orders are charitable. It was so wide that some orders may be contemplative orders, rather than pursuing extraneous good works. So taking a broad view of construction it was void could further non-charitable purposes. Cf. now the contract-holding theory of gifts to unincorporated associations (see notes on property holding by unincorporated associations).

McPhail v Doulton [1970] UKHL Mr Betram Baden executed a deed settling a non-charitable trust for the benefit of 1 the staff of Matthew Hall & Co Ltd and their relatives and dependants. The objects clause provided that: The trustees shall apply the net income of the fund in making at their absolute discretion grants to or for the benefit of any of the officers and employees or exofficers or ex-employees of the company or to any relatives or dependants of any such persons in such amounts at such times and on such conditions (if any) as they think fit. The validity of the trust was challenged, averring that the objects were insufficiently certain. Judgment Lord Wilberforce, after noting the fact that the settlor had left his property on trust, with instructions to distribute according to the trustees choices (and, therefore, not equally among the potential beneficiaries), stated the following: As a matter of reason, to hold that a principle of equal division applies to trusts such as the present is certainly paradoxical. Equal division is surely the last thing the settlor ever intended: equal division among all may, probably would, produce a result beneficial to none. Why suppose that the court would lend itself to a whimsical execution? and as regards authority, I do not find that the nature of the trust, and of the court's powers over trusts, calls for any such rigid rule. Equal division may be sensible and has been decreed, in cases of family trusts, for a limited class, here there is life in the maxim 'equality is equity,' but the cases provide numerous examples where this has not been so, and a different type of execution has been ordered, appropriate to the circumstances.*1+ His Lordship then went on to discuss the authority for this principle, which is compelling. As to the value of the facts, the comment above was a powerful reason

Milroy v Lord [1862] EWHC J78 English trusts law case that held trusts should not be used to save gifts from being defeated. It purported to follow one of the maxims of equity that "Equity will not assist a volunteer" which has two sub-strands. Thomas Medley set up a trust for his niece, Eleanor Milroy (ne Dudgeon). Samuel Lord was to be the Trustee. Medley took a number of steps to achieve this: He set up a written deed to establish the trust, consideration was given for the shares, and Miss Dudgeon was intended to receive the dividends of shares when she married and to receive the shares when Medley died. However, Medley did not in fact transfer the shares to Lord, but merely gave Lord power to distribute the dividends, which meant that the gift was incomplete. Had Medley transferred the gift to Lord as stated, all would have been well. However: because Medley kept the shares which he had originally said were going to be transferred, the trust wasn't valid. Turner LJ stated that there were three 'modes' of making a gift: An outright transfer of the legal title to the property A transfer of legal title of the property to a trustee to hold on trust A self-declaration of trust He went on to state that: in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift. The cases I think go further to this extent, that if the settlement is intended to be effectuated by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust. (Turner LJ) Morice v Bishop of Durham [1805] EWHC Ch J80 Concerning the policy of the beneficiary principle. The testator purported to make a trust for such objects of benevolence and liberality as the trustee in his own discretion shall most approve. Court of Chancery Sir William Grant held that the will could not amount to a charity, and so the money had to return to the next of kin High Court of Chancery Lord Eldon LC, on appeal, also found that the trust could neither be valid as a private trust, because it lacked beneficiaries. As it is a maxim, that the execution of a trust shall be under the control of the court, it must be of such a nature, that it can be under that control; so that the administration of it can be reviewed by the court; or, if the trustee dies, the court itself can execute the trust: a trust therefore, which, in case of mal-administration could be reformed; and a due administration directed; and then, unless the subject and the objects can be ascertained, upon principles, familiar in other cases, it must be decided, that the court can neither reform maladministration, nor direct a due administration. That is the principle of that case.

Mussett v Bingle [1876]

If no stipulation as to the period then the trust is void unless it must necessarily determine within the perpetuity period 21 years in most cases. If trust might exceed period then will be void. Implied limitation e.g. Mussett v Bingle [1876] WN 170 building of monument / maintenance of monument within period. Valid because assumed monument would be erected within 21 years. Further clause for maintenance void because no period stipulated. Palmer v Simmonds, where the testator left the bulk of my residuary estate on trust, It was held that there was no trust as the word bulk was uncertain. Paul v Constance [1977] 1 WLR 527 is an important English trust law case. It sets out what will be sufficient to establish the first of the "three certainties" necessary for a trust (certainty of intention). It is necessary that a settlor's "words and actions ... show a clear intention to dispose of property ... so that someone else acquires a beneficial interest. Mr Constance, deceased, set up a bank account in his own name. On many occasions he stated to his de facto partner Mrs Paul (the plaintiff), that "The money is as much yours as mine."[2] Mr Constance was still legally married to Mrs Constance (the defendant). Mr Constance died intestate, and his assets including the account passed to the defendant. This statement itself was not sufficient to imply a trust was created. One of the key facts was that both Mr Constance and the claimant played bingo and both parties paid their bingo winnings into this account. Their conduct in this situation implied to the court that Mr Constance did intend this to be a trust. To establish a trust, there must be sufficient certainty of intention that the settlor is granting a beneficial interest to the beneficiary. This can be expressed orally, and no particular form of words or conduct are necessary.[3] The word 'trust' need not be used. However, an imperfect gift (as in Jones v Lock) does not show sufficient certainty of intention.

Palmer v. Simmonds (1854)

Paul v Constance

Paul v Constance [1977] 1 WLR Mr Constance, deceased, set up a bank account in his own name. On many 527 occasions he stated to his de facto partner Mrs Paul (the plaintiff), that "The money is as much yours as mine."[2] Mr Constance was still legally married to Mrs Constance (the defendant). Mr Constance died intestate, and his assets including the account passed to the defendant. This statement itself was not sufficient to imply a trust was created. One of the key facts was that both Mr Constance and the claimant played bingo and both parties paid their bingo winnings into this account. Their conduct in this situation implied to the court that Mr Constance did intend this to be a trust. To establish a trust, there must be sufficient certainty of intention that the settlor is granting a beneficial interest to the beneficiary. This can be expressed orally, and no particular form of words or conduct are necessary.[3] The word 'trust' need not be used. However, an imperfect gift (as in Jones v Lock) does not show sufficient certainty of intention.

Pennington v Waine [2002]

Ada wanted to transfer her 400 shares to her nephew, Harold. She asked Mr Pennington, who represented the companys auditors, to prepare a share transfer form. She filled it in and gave it back to Mr Pennington. Mr Pennington put it on the auditors files but never gave it on to the company for the registration of shares in Harolds name to be completed. Ada died. Her other inheritors argued that unlike Re Rose, Ada had not done all she could have, because she had not handed the completed transfer form to Harold or the company. The Court of Appeal held that the shares did indeed belong to Harold. Arden LJ held that it would have been unconscionable for Ada to change her mind and go back on the transfer. Ada had given the transfer form to Pennington so that he could do the registration. She had told Harold about the gift, and no action on his part was necessary. Moreover, Harold had agreed to be a company director, for which a shareholding was needed. Clarke LJ held that equitable title could transfer without registration. Completion of forms and delivery to a company was enough in Re Rose, but it should be recognised that delivery to the company was not a further essential step. It was enough that the transfer was intended to have immediate effect. Schiemann LJ concurred with both judgments.

Pettingall v. Pettingall, [FN32]

The pet owner provided that a fixed amount be paid for the benefit of his black mare. The will explained exactly what the owner desired as follows: I hereby bequeath, that at my death, 50 l. per annum be paid for her keep in some park in England or Wales; her shoes to be taken off, and she never to be ridden or put in harness; and that my executor consider himself in honour bound to fulfil my wish, and see that she be well provided for . . . . At her death all payment to cease. [FN33] The Pettingall case provided the basis for the court to make a direct ruling on the validity of provisions for the benefit of specific animals. However, since all parties assumed the gift valid, the court addressed other issues.

Pilkington v IRC 1964

A testator directed his trustees to hold the income of his residuary estate upon protective trusts in equal shares for all his nephews and nieces living at his death with a provision that their consent to any exercise of any applicable power of advancement should not cause a forfeiture of their interests, and after the death of a nephew or niece to hold the capital and income of such beneficiarys share for his or her children or remoter issue as he or she should appoint, and in default of appointment for his or her children at 21. The will contained no provision replacing or excluding the power of advancement contained in section 32 of the Trustee Act 1925. One of the nephews was married and had three infant children. The second child, a daughter was born on the 20th December 1956 and the trustees wished to exercise the statutory power of advancement in her favour, for the purpose of avoiding death duties. It was proposed that one half of her expectant share in the testators trust fund should advanced in her favour, by adding it to a new settlement which was to be applied for her maintenance until she attained 21, and from then on, until she attained 30, when the capital was to be held on trust for her absolutely. If she should die under that age, the trust fund was to be held upon trust for her children who should attained the age of 21 years, and subject as aforesaid upon trust for the nephews other children. The trustees of the will took out a summons to determine whether they could lawfully exercise the powers conferred upon them by Section 32 of the Trustee Act 1925, in order to take this step. The Inland Revenue objected on the grounds that this was a re-settlement the trust. a husband gave all of his of property to his wife, "in full confidence that she will do what is right as to the disposal thereof between my children...". The Court held that the wife may have been under a moral obligation to treat the Property a certain way but this was not sufficient to create a binding trust. Precatory words can still sometimes create a trust. Facts: Involved the entire share holding of the Observer Newspaper. All shares given to trustees trustees required to apply the shares for: 1. maintenance and improvement of good understanding sympathy and co-operation between nations; 2. The preservation of the independence and integrity of newspapers 5. The protection of newspapers from being absorbed or controlled by combines. Decision: Void because there were no private beneficiaries; just vague purposes.

Re Adams and Kensington Vestry 1884

Re Astors Settlement Trusts [1952];

Re Barlows Will Trusts *1979+

Miss Helen Alice Dorothy Barlow, the testatrix had a large collection of pictures. She specifically bequeathed some. For the remainder, she declared them to be held by her executor on trust to sell them, but that her family and friends could buy them first at 1970 valuations or at the probate value, whichever was lower. The proceeds would go to the residuary estate. The executors asked the court whether the direction about family and friends was void, given its uncertainty, and if it was valid, who the family and friends were. Browne-Wilkinson J held that the trust was valid, because both concepts of friends and family could be given a workable meaning. Although friend could have a wide variety of meaning, the minimum requirements were that (a) the relationship had to be long standing (b) be a social and not a business or professional relationship, and (c) although they may not have met for some time, when circumstances allowed, they would meet frequently.*1+ The word family could be construed as any blood relation, and the only reason in other cases to restrict the concept to statutory next of kin had been to save gifts from failing for uncertainty.

Re Bowes [1896] 1 Ch 507

Mr Bowes, in his will left his estate to the Earl of Strathmore for life, and then the rest in tail. But included, was a gift of 5000 to the trustees for planting trees for shelter on the Wemmergill estate. There was much more money than needed for planting trees. North J held that the trust was for the benefit of the owners of the estate. Hence the residents could use the surplus money in the way they chose.

Re Clores Settlement Trusts; ChD 1966

A 21 year old beneficiary of a substantial trust fund requested the trustees to apply for his benefit a sum (equal to about one-seventh of the fund) to a family charitable foundation. He would be entitled to the capital of the fund on attaining 30, in default of which the capital went to his issue if any and subject thereto to his sister and her family in trust. Held: It was open to the trustees to make the advance: i) the improvement of the material situation of the beneficiary is not confined to his direct financial situation but could include the discharge of certain moral or social obligations particularly in relation to provision for family and dependants. And ii) the court has always recognized that a wealthy person has a moral obligation to make appropriate charitable donations and that: a beneficiary under a settlement may indeed in many cases be reasonably entitled to regard himself as under a moral obligation to make donations towards charity. The nature and amount of those donations must depend upon all the circumstances, including the position in life of the beneficiary, the amount of the fund and the amount of his other resources. Once that proposition is accepted, it seems to me that it must lie within the scope of a power such as that contained in clause 8 of this settlement for the trustees to raise capital for the purpose of relieving the beneficiary of his moral obligation towards whatever charity he may have in mind. If the obligation is not to be met out of the capital of the trust fund, he would have to meet it out of his own pocket, if at all. Accordingly, the discharge of the obligation out of the capital of the trust fund does improve his material situation. The precise amount which the trustees can in any given case apply for this purpose must depend, I think, on the particular circumstances, and in this respect quantum is a necessary ingredient in the proper exercise of the power. It is difficult, for example, to see how the trustees under a power such as that in clause 8 could validly pay over the whole authorized twothirds to charitable purposes. On the other hand, it is certainly not for the court to say precisely where the line is to be drawn. iii) rejecting the argument that direct

Re Denleys Trust Deed *1969+ In 1936 the settlor company, HH Martyn & Co Ltd, from Sunningend Works, 1 Ch 373 Cheltenham, transferred land to trustees to, under clause 2(c) be maintained and used as and for the purpose of a recreation or sports ground primarily for the benefit of the employees of the company and secondarily for the benefit of such other person or persons (if any) as the trustees may allow to use the same. Clause 2(j) added that the employees would cease entitlement if the number dropped below 75% of them or if the said land shall at any time cease to be required or to be used by the said employees as a sports ground or if the company shall go into liquidation then the trustees shall ... convey the said land to the General Hospital Cheltenham or as it shall direct. It was argued that this was a non-charitable purpose trust and should fall foul of the beneficiary principle. The claimants were the trustees, the first defendant was the company, who argued clause 2(j) was void for uncertainty, and if not clause 2(c) was also void, and hence the property would be on resulting trust to the company. The second defendant was an employee representing the others, who argued that clause 2(c) is valid, and if not then clause 2(j) would be void. The third defendants was the Cheltenham Group Hospital Management Committee, which under the National Health Service Act 1946 was successor to the assets of the Cheltenham General Hospital, argued that clause 2(c) is void, and that clause 2(j) is valid, so that they would get the grounds. Goff J held that the trust was valid, because it could be construed as being ultimately for the benefit of people and thus made to work

Re Ellenborough [1903]-

A trust cannot be created of future property i.e. an interest person expects to inherit/ future income. Re Ellenborough [1903]- tried to create a trust for property which she might inherit on the death of her brother/ sister. The trust failed for lack of certainty of subject matter. Re Endacott [1959] EWCA Civ 5 Mr Albert Endacott wrote in his will that he would give his son some houses and a factory, and then all the rest to the North Tawton Devon Parish Council for the purpose of providing some useful memorial to myself unless his wife was still alive, in which case the interest should be paid to her. Lord Evershed MR held that the trust was invalid, because it would be a purpose trust going beyond the fixed list that had been previously exempt

Re Golay

which refers to the beneficial entitlement in this case, the executors under a will were directed to allow a beneficiary to enjoy the use of one of the flats and receive a reasonable income from the properties although the word reasonable seemed to uncertain the gift was upheld as the courts assumed that it referred to the beneficiarys previous standard of living.

Re Goldcorp Exchange Ltd [1995] 1 AC 74 i

Goldcorp Exchange Ltd had a business of holding gold reserves for customers wishing to invest in gold. Bullion levels were held for customers, but these varied from time to time.

The Privy Council advised that it was impossible to say what each customer owned, and also impossible to know the customers fraction of the total. The total amount purchased by individual customers exceeded the total amount of gold bullion that was stored. Re Grants Will Trusts *1979+ 3 A bequest was given to the Labour Party Property Committee for the benefit of the All ER 359 Chertsey Headquarters of the Chertsey and Walton Constituency Labour Party and if the CLP moved from the Chertsey UDC area his estate would pass to the National Labour Party. Its rules, which bound the members, could be altered by a non member: the National Labour Party. This meant that unlike a normal association, the members could not unanimously agree to waive the rules and divide the property between themselves. Vinelott J held that the estate was to be kept intact as endowment capital on trust for the Labour Partys purposes, and therefore was void for infringing the beneficiary principle and the rule against inalienability. The Re Recher analysis (that donations take effect as accretions to the groups funds, subject to the contract that exists between the members) could not be applied.

Re Hooper [1932]

A trust for the maintenance of graves was upheld, but the court indicated that it would not have done so had it not been bound by Pirbright v Salwey [1896] WN 86. Such trusts still need to comply with the requirement of certainty. Hence a

Re Kayford Ltd [1975] 1 WLR 279

UK insolvency law and English trusts law case, concerning the creation of a trust over payments made by consumers, in an insolvent company. The directors of Kayfords Ltd, a mail order business, were concerned about insolvency. They were receiving pre-payments for goods from their customers, and were concerned about this being taken by other creditors. They got advice from their solicitors who said that they should open another account and deposit money from customers into that account. Suppliers of Kayfords Ltd went insolvent, and soon Kayfords Ltd also found it could not survive. It went into liquidation and the creditors claimed that the money in the accounts was part of the companys assets. It was contended that instead the money was held on trust for Kayfords customers. Megarry J held that the money was subject to a trust. It fulfilled all the requirements for creation of a trust, including certainty of intention, beneficiaries and subject matter. Although he said different considerations could apply for trade creditors, he was concerned only with members of the public, some of whom can ill afford to exchange their money for a claim to a dividend in the liquidation, and all of whom are likely to be anxious to avoid this. Megarry J held that "it is well settled that a trust can be created without using the word "trust" or "confidence" or the like; the question is whether in substance a sufficient intention to create a trust has been manifested"

Re Lipinskis Will Trusts *1976+ Mr Harry Lipinski, who was active in the Hull Jewish community, gave the residual Ch 235 part of his estate as to one half thereof for the Hull Judeans (Maccabi) Association in memory of my late wife to be used solely in the work of constructing the new buildings for the association and/or improvements to the said buildings. The other half was one quarter for the Hull Hebrew School (Talmud Torah), and one quarter for the Hull Hebrew Board of Guardians. The next of kin challenged these provisions, questioning whether the gift to the association would not be void. Oliver J held that the bequest was to the association absolutely, so in fact they did not need to use it for buildings (only constrained by the contract). The purpose was within the associations power to do, and it would be up to them to honour it.

Re London Wines Co (shippers) where the buyers of wines stored it at a warehouse claimed that it was held on Ltd, trust for them but it failed as the wine had not been separated from similar stock in the warehouse. The legal principle here is that the trust property must be ascertainable. Thus the effect of lack of subject-matter is that there cannot be no trust as there is nothing to hold on trust.

Re Londonderry's Settlement [1965] Ch 918

Facts A beneficiary did not like the small sums proposed to be distributed to her. She wanted information about the reasons for the decision. Judgment The Court of Appeal held that there was no need for disclosure of reasons, because it could cause family strife, fruitless litigation or make the trustees role impossible.

Re Rallis Will Trusts *1964+,

the settlor entered into a covenant to transfer property to the trustees of her marriage settlement but there was a failure to transfer certain property to the trustees which didnt vest in her possession until after she died. Buckley J held the settlor declared herself trustee of any such property pending transfer and so a completely constituted trust arose by declaration, enforceable by the beneficiaries against the settlors personal representative. A baronet created a trust for future baronets who were married to a wife of Jewish blood and who continues to worship according to the Jewish faith. If in doubt, the decision of the Chief Rabbi in London of either the Portuguese or Anglo German Community shall be conclusive. It was contended that the Jewish faith and blood were too uncertain. Lord Denning MR held the trust was valid, and the Chief Rabbi could resolve any uncertainty. Lord Russell of Killowen also upheld the trust but on other grounds. Eveleigh LJ said the trust was valid, but because the Chief Rabbis opinion of who was Jewish was part of the definition of the class of beneficiaries (but he would not have been able to resolve an uncertain class.)

Re Tucks Settlement Trusts [1977]

Re Vandervell's Trusts (No 2) [1974] Ch 269

Concerning resulting trusts. Tony Vandervell, an old and wealthy racing car manufacturer, was attempting to make a donation to the Royal College of Surgeons to establish a chair in his name. He wanted to avoid paying tax, and had come up with a second scheme, after a first attempt to make a tax free donation had failed in Vandervell v IRC.[1] He instructed the tax company to repurchase shares in his company, through the option that had been granted. Vandervell did not want to pay tax on the option, and did not want to pay tax on the shares (the trust of which he would be an object, the trustee being his trust company). The purchase money came from a trust, held by the same trust company, but in favour of Vandervell's children. As such, the trust company took themselves as holding the purchased shares on trust for the children. The Court of Appeal (overturning the judgment of Megarry J in the High Court) held that the option ceased to exist once it was exercised. Thus, there was no disposition, and no consequent liability to pay tax. It also held that the children were the equitable owners of the shares, and, as such, Vanderwell had divested himself of equitable ownership of the shares. Megarry J. distinguished between automatic and presumed resulting trusts, as follows: "(a) The first class of case is where the transfer to B is not made on any trust ... there is a rebuttable presumption that B holds on resulting trust for A. The question is not one of the automatic consequences of a dispositive failure by A, but one of presumption: the property has been carried to B, and from the absence of consideration and any presumption of advancement B is presumed not only to hold

Re Vesteys Settlement *1951+ The income of a fund was held on trust to be paid or applied to or for the support or benefit of the members of a class as the trustees might decide in their discretion. The trustees resolved in each of three successive periods to distribute part of the income to certain adult beneficiaries and declared the balance to belong to infant beneficiaries in specified shares. The minute of each resolution went on to record that the trustees were of the opinion that none of the income falling to infant beneficiaries under the resolution was required for the maintenance of the beneficiaries and accordingly they resolved that the income should be accumulated under section 31 of the Trustee Act 1925. It appeared that, in taking this decision, the trustees had regard to the fact that if income were distributed it would be subject to surtax whereas if it were accumulated it would not be taxed in that way. Later the trustees came to doubt whether what they had done had been effective as they had intended, and they brought proceedings to have the position clarified, joining the adult beneficiaries and the infant beneficiaries as defendants. Harman J held that the allocation of the income to the infants with a view to its being accumulated was not a valid exercise of the power conferred by the settlement. The infant beneficiaries appealed to the Court of Appeal. There the situation was analysed differently. It was held that the allocation of the balance of the income to the infant beneficiaries was valid under the power in the settlement, as an application of the income for their benefit, but that this made the income the absolute property of the relevant beneficiaries, and the power to accumulate under section 31 therefore did not apply. That then raised the question whether, because of the erroneous belief that the income would fall to be accumulated, the allocation of the income to the infant beneficiaries was valid and effective at all. It is that last question that makes the case relevant to Hastings-Bass debate. Richards v Delbridge (1874) LR the Ownership of Freehold or Leasehold property can only pass by deed and if relevant 18 Eq the deed must be stamped for the gift to be enforceable. Thus any property transfer such as the creation of a lease must be by deed with similar considerations applying to declarations of trust involving land and any subsequent transfers of the declared interests. a donor wrote on a lease that it had been given to a member of his family. No deed so no gift.

ROCHEFOUCAULD v BOUSTEAD The question raised by this appeal is whether the plaintiff is entitled to an account from the defendant of the proceeds of sale of certain coffee estates in Ceylon. The [1897] 1 Ch 196 estates in question are known as the Delmar estates. They formerly belonged to the plaintiff; they were mortgaged first to Barings and then to a Dutch company, and on May 27,1873, they were sold and conveyed to the defendant. In form the conveyance was to him absolutely, but the plaintiff insists that the estates were conveyed to the defendant as a trustee for the plaintiff, subject, however, to the repayment to the defendant of the amount which he paid for them and of the expenses which he has incurred in managing the estates. The estates were sold by the defendant or his mortgagees many years ago without the knowledge of the plaintiff, and she says that the proceeds of sale were more than sufficient to repay to the defendant all his advances, and that a considerable surplus remained which the defendant ought to have paid over to her. The defendant, in answer to this claim, says (1.) the estates were conveyed to him, not as a trustee for the plaintiff, but as beneficial owner; (2.) the trusts alleged by the plaintiff cannot be proved by any writing signed by the defendant, and the Statute of Frauds affords a defence to the action; (3 ) the plaintiff's claim, even if proved, is barred (a) by the defendant's bankruptcy, (b) by the Statute of Limitations, (c) by the plaintiffs laches, and the equitable doctrines applicable to delay independently of the statute. Kekewich J. decided against the plaintiff on the first ground - namely, that there was no trust in favour of the plaintiff. This view of the case rendered it unnecessary for him to consider the other defences. The plaintiff has appealed from this decision; and, as we have been unable to take the same view as the learned judge of the effect of the evidence, it will be necessary for us to deal with all the other defences relied upon by the defendant. circumstances under which thebreach Delmar estates were conveyed to the Royal Brunei Airlines Sdn Bhd v The English trusts law case, concerning of trust and liability for dishonest Tan [1995] 2 AC 378 assistance. Royal Brunei Airlines appointed Borneo Leisure Travel Sdn Bhd to be its agent for booking passenger flights and cargo transport around Sabah and Sarawak. Mr Tan was Borneo Leisure Travels managing director and main shareholder. It was receiving money for Royal Brunei, which was agreed to be held on trust in a separate account until passed over. But Borneo Leisure Travel, with Mr Tans knowledge and assistance, paid money into its current account and used it for its own business. Borneo Leisure travel failed to pay on time, the contract was terminated, and it went insolvent. So Royal Brunei claimed the money back from Mr Tan. The Judge held Mr Tan was liable as a constructive trustee to Royal Brunei. The Court of Appeal of Brunei Darussalam held that the company was not guilty of fraud or dishonesty, and so Mr Tan could not be either. Lord Nicholls held it was the dishonest assistants state of mind which matters. Knowledge depends on a gradually darkening spectrum. Therefore the test for being liable in assisting breach of trust must depend on dishonesty, which is objective. It is irrelevant what the primary trustees state of mind is, if the assistant is himself dishonest.

Saunders v Vautier (1841)

A testator had bequeathed 2,000 worth of stock in the East India Company on trust for Vautier. According to the terms of the trust, it was to accumulate until V attained the age of 25. The stock's dividends were to be accumulated along with the capital. Upon reaching the age of maturity (21 at the material time) he sought access to the capital and dividends immediately.[2] Judgment The case was ruled in favor of the defendant. The rights of the beneficiary were held to supersede the wishes of the settlor as expressed in the trust instrument. Lord Langdale MR held as follows: I think that principle has been repeatedly acted upon; and where a legacy is directed to accumulate for a certain period, or where the payment is postponed, the legatee, if he has an absolute indefeasible interest in the legacy, is not bound to wait until the expiration of that period, but may require payment the moment he is competent to give a valid discharge.[3]

Stack v Dowden ([2007] UKHL 17, [2007]

In Stack v Dowden ([2007] UKHL 17, [2007] 2 AC 432) an unmarried couple bought a home in joint names. There was no express declaration that they were beneficial joint tenants nor as to how the beneficial ownership of the property was to be divided between them. Ms Dowden contributed around 65% of the purchase price (in the form of an initial down payment and of mortgage contributions) and Mr Stack the remaining 35%. When the relationship broke down, Mr. Stack sought an order for sale and half of the proceeds of sale. The majority of the House of Lords took a constructive trust approach. Baroness Hale (with whom the majority aligned themselves) held that where family property is in joint names and there is no express declaration as to how ownership is to be shared, the starting presumption is that the parties intended a beneficial joint tenancy. Following a severance, in the absence of a contrary intention, this results in equal beneficial shares under a tenancy in common. This presumption can be departed from in exceptional circumstances. Here the fact of unequal contributions and the fact that the parties had kept their finances and savings separate justified a departure from the presumption. Mr. Stack was entitled to 35% of the proceeds of sale. Lord Neuberger agreed with the conclusion but not the approach. He thought that a resulting trust approach should be taken to the calculation of the respective interests of the parties. In cases such as this, equal beneficial ownership should be the starting point unless there was relevant evidence (concerning the parties respective contributions to the purchase price) pointing to a different conclusion.

Strong v Bird [1874] LR 18 Eq 3 Bird borrowed 1,100 from his stepmother. She was living with him and paying him for rent. It was agreed by both parties that the loan was to be repaid by a reduction in the rent, until the loan was settled. Birds stepmother only paid the reduced rent twice. Thereafter, she paid the full rent until her death. On her death, she appointed Bird as her executor and the next of kin now attempted to recover the debt from Bird. The conduct of his stepmother (stopped paying the reduced rent as per their agreement) does not discharge the debt at law because there was no consideration provided for the release. The issue was whether Bird must pay back the loan. The appointment of Bird as the executor was an evidence that the loan to Bird was a gift to him. This is because the executor is responsible for calling in debts to the testator's estate, It would be ridiculous for the executor to sue himself for the debt. Therefore, common law rulings cancelled the debt to avoid this anomaly. Furthermore, the stepmother's donative intention had continued until her death.

T Choithram International SA v Thakurdas Choithram Pagarani died. Shortly before his death, he tried to transfer Pagarani and Others [2001] various assets to the Choithram International Foundation, a philanthropic body created by him at the same time as the gift. Mr Pagarani was born in 1914 in India. He was a devout Hindu. In 1928 he married his first wife, Lalibai Thakurdas Pagarani, by whom he had six daughters. In about 1937 Mr Pagarani left India and eventually established a supermarket business in Sierra Leone, Lalibai and their children remaining in India. In Sierra Leone he met and in 1944 married Virginia Harding, who bore him eight children including three sons.[1] Mr Pagarani remained in Sierra Leone until the 1980s but used to return to India to visit his Indian family and those members of his Sierra Leone family whom he had taken to India to be brought up according to Indian ways and customs. The businesses carried on by Mr Pagarani were outstandingly successful and spread widely throughout the world. They were usually named "T. Choithram and Sons" and were often known simply as "Choithrams". In 1989 Mr Pagarani brought most of his business under the umbrella of the first various offshore companies (including T Choithram International SA), in effect, holding companies. He was not the sole owner of the shares in those companies, but he held a majority share. Throughout his life Mr Pagarani was outstandingly generous in his charitable giving. His gifts amounted to many millions of U.S. dollars. The judge at first instance found as a fact that: having made generous provision for his first wife and each of his children, [he] intended to leave much of the remainder of his wealth to charity, to the exclusion of his children. This he hoped to achieve by setting up a foundation to serve as an umbrella organisation for those charities which he had already established and which would in due course be the vehicle to receive most of his assets when he died. This was from all accounts, a longstanding intention of the deceased. At the end of 1991, Mr Pagarani was diagnosed as suffering from cancer. He left his Thynn v Thynn (1684) Secret trusts fall into two categories: fully secret trusts and half-secret trusts. In a fully secret trust, property is given by will to a legatee absolutely without mention of any trust: the gift appears to be absolute and there is no trust on the face of the will

Vandervell v Inland Revenue Commissioners [1967] 2 AC 291

Concerning resulting trusts. It demonstrates that the mere intention to not have a resulting trust (for example, to avoid taxes) does not make it so. Tony Vandervell was a wealthy racing car manufacturer with a company called Vandervell Products Ltd. He wanted to donate to the Royal College of Surgeons, to establish a chair of pharmacology. He also wanted to avoid paying tax on the donation. At the time, stamp duty applied to outright donations and taxes applied to any income through dividends on company shares.[1] However, since the Royal College of Surgeons was a charity it was not liable to pay tax on any income. So Vandervell orally instructed his trust company (Vandervell Trustees Ltd, which was also set up to administer his money for his children) to transfer 100,000 shares in Vandervell Products Ltd to the Royal College of Surgeons, with an option for the trustees to purchase back the shares back for 5000. He then instructed the company to declare a dividend on the shares. So while the shares were in the possession of the Royal College of Surgeons, it paid out 145,000 in dividends up to 1961. Vandervell had hoped this would mean that he would avoid tax (as opposed to simply getting income for himself, on which he would pay tax, and then giving the money to the College). Unfortunately, in 1961, the Inland Revenue made a claim for tax on the transfer.[2] The Inland Revenue argued that Vandervell retained an equitable interest in the shares. They were still his, even though the shares were possessed by the College, he had the option to get them back. They argued his oral instruction to the trust company was not capable of transferring the equitable interest, because it did not comply with the formality requirements specified in Law of Property Act 1925 section 53(1)(c). This section requires signed writing to evidence the existence of a disposition. So he should be liable to pay tax on the value of those shares.[3]

Warren v Gurney [1944] 2 All ER 472

The House of Lords,aby three two, found that Vandervell was liable to pay a father purchased house into the name of his daughter prior to indeed her wedding. He retained the title deeds until his death. The Court of Appeal held that the presumption of advancement was rebutted by evidence that at the time of the transaction the father had intended her husband to repay the money. The retention of the title deeds was considered a very significant fact, as one would have expected the father to have handed them over either to [his daughter] or her husband, if he had intended the gift.

Westdeutsche Landesbank Girozentrale v Islington LBC

English trusts law case concerning the circumstances under which a resulting trust arises. It held that such a trust must be intended, or must be able to be presumed to have been intended. In the view of the majority of the House of Lords, presumed intention to reflect what is conscionable underlies all resulting and constructive trusts. The Westdeutsche Landesbank Girozentrale sued Islington LBC to get back 1,145,525, including compound interest that it had paid under an interest rate swap agreement, which had been held ultra vires the powers of the council. The bank argued there was a resulting trust of the money it paid to the council, and so because the contract had no legal effect, nothing was given in return for the money, and the presumption of a resulting trust was raised. The bank argued that presumption was not rebutted because the bank did not intend to make a gift of the money to the council. Establishing a proprietary right would have meant that the bank was entitled to compound interest, whereas a mere personal claim for the money back would have meant (at the time, before the House of Lords decision in Sempra Metals Ltd v Inland Revenue Commissioners[2]) only simple interest was payable. The council argued that it should not have to pay compound interest, because that was only available if the money was held on trust for the bank, and there was no trust. There needed to be presumption of an intention to create a resulting trust. But there was none, because the bank plainly had intended from the start to enter a valid swap agreement, and had never set out to create a trust. In February 1993, Hobhouse J held the bank could recover the money because the council had been unjustly enriched at the banks expense, and could recover compound interest. Hazell v Hammersmith and Fulham LBC[3] was considered and Sinclair v Brougham[4] was applied. The Court of Appeal, with Dillon LJ, Leggatt LJ and Kennedy LJ, upheld the High Court, with Andrew Burrows acting for Islington LBC, and Jonathan Sumption QC for Westdeutsche. The council appealed.