Intention - Essay Example

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“English law has a great affection for certainty: judges are concerned that the law promotes certainty in contracts, trusts and other dealings between persons. In terms of the trust specifically, the judges’ concern is that the settlor makes her intention sufficiently certain so that the court will be able to direct the trustees how to act if there are problems with the administration of the trust”…
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Download file to see previous pages These elements are essential prerequisites for a valid creation of express trust. Trust being an arrangement, certainty of certain aspects must be present just as in a contract (Hudson, 2009). Certainty of intention The settlor should have actually intended to create a trust without giving an impression of imposing some moral obligations or gifting or acting in some other manner which cannot be a trust. As there is no prescribed wording for creation, courts are expected to examine what intention of the parties had been and whether those intentions are given effect to in the trust deed. The court is free to infer an intention from the circumstantial evidences including parties’ conduct. Thus, the inference may be had if the property owner shows a positive intention to share the beneficial ownership of his property with someone else, or if he transfers title of the property to a third party intending that he will hold it for the benefit of some other person. The intention must be in the form of a trust deed and not as a gift or some other form. Though there are exceptions, written form is ideal to prove the existence of a trust and the certainty of intention. ...
950 he received as compensation for an injury, bank refused as they were not married. Hence, with the account in his sole name, he became the common law owner of the account. Later on the couple put both their monies in the same account and spent the money in the account for their common purposes. Once Mr Constance had told Mrs Paul “this money is as much yours as mine”. After Paul’s death, his wife claimed the money in the bank account stating that the balance in the account belonged to her husband and she was entitled to the bank account balance as per the Intestacy Rules. Although the widow of Mr Constance was entitled as his legal heir, court held his wordings “this money is as much yours as mine”. constituted an evidence to create a trust for the benefit of Mrs Paul as well as Mr Constance. The Court said that Mr Constance might have behaved in the manner above without being conscious of creating a trust and its legal implications. Courts are only uncovering an express trust and not imposing a constructive trust. In Re Kayford (1975), the mail order company, in anticipation of impending insolvency, set apart all advance payments from its customers in a separate bank account and withdrew from that account as and when supplies were made to each customer. This was done with the intention that in the event of becoming insolvency, customers’ monies not supplied with goods could be returned to them. When the issue arose as to whether the money in the separate account could be distributed to the existing creditors, the court held that the company had held the money in a separate account in trust for the benefit of unsupplied customers who had made advance payments. By creation of a separate account, the company’s intention to create a trust ...Download file to see next pagesRead More
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