EQUITY & TRUST LAW List of Cases According To Topic PDF

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Topic Issue Case(s)

Birth, rationale and development of equity
Historical background
“equity is a branch of law which, before the Hansbury v Martin
judicature act of 1873 came into force, was applied
and administered by the court of chancery”
Lord Ellesmere stated that equity was developed Earl of Oxford’s case
“to soften the extremety of law”.
“equity is no part of the law, but a moral virtue Lady Dudley v Lady Dudley
which qualifies, moderates and reforms the rigour,
hardness and edge of the law”.
Differences
Matters Defects/rigidity of CL Equity overcome the defects
Writs - cases must be filed via writs. - did not emphasise on formalities but instead
- Writs were issued and developed by the looked at intention.
chancery (as prime minister’s dept now). - Royal writs were not necessary
- Lord Chancellor was empowered to issue - petitions were sufficient.
royal writs through use of the great seal. - many were able to file claims via petitions to
- emphasised on formalities and hence the the king.
appropriate type of writ must be used to - looks at intention , equity looks at substance
file each claim. - Prof Maitland explained that the chancellor
- chancery was unable to develop the writs will consider the petition/bill.
according to the development of claims. - He will call the defendant to come before
- many people were unable to claim him and answer the complaint.
- Subpoena was issued to compel the
defendant to appear before the
chancellor.
- Subpoena orders the defendant to be
present and failure to attend would render
a sum of his money being forfeited.
- Examination was made under oath.
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Remedies - damages/monetary compensation. - developed the remedy of specific

- inadequate to remedy all the claims. performance, injunction and tracing.
-known as equitable remedies
System - selected laypersons deliver judgment in - chancellor decided on own.
the court upon the judge’s guidance on the - bribery was overcomed and justice was
legal principles upheld.
- they were not with legal education - A person with valid claim may claim his rights
background. regardless of his financial status.
- Emotional tacklings could be done by the
lawyers to win the juries’ sympathy.
- main problem was bribery.
- rich won the cases while the poor lost
their cases even though the latter had valid
claims. Poor were left without justice.
Judicial - judges were bound to apply the same - based on conscience.
Precedent decision as decided by the higher court - Recall Selden’s description of equity’s growth
judges if the facts are similar. (if the chancellor’s conscience is longer, equity
- A decision that was fair in one case before is longer and if the chancellor’s conscience is
might not be fair or appropriate at a later narrower, equity is narrower).
point of time. - decision did not bind another chancellor.
- Each case was analysed and looked into and
decided individually based on conscience.
- decisions appropriate according to the
development of cases were delivered.
- later stage, court of equity was also criticised
for following judicial precedent.
Courts CL courts - Courts of equity
- chancellor did not decide against the law but
stretched his decisions beyond formalities.
How equity works
Gloss on the CL Aristotle (ancient greek philosopher) said,
Developed not as a rival to common law but as a “equity is a rectification of legal justice”.
gloss upon the common law to avoid injustice due A scholar described that equity was introduced to
to the rigidity of the common law “wipe the tears of common law”.
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Conflict between common law and chancery (court of equity)

16th Century - arose due to power to issue injunction by the court of equity
- Chief Justice Coke, CL court judge – was not willing to let down common law and
held in many cases that the imprisonment for disobedience of injunctions issued by
chancery was unlawful. (Heath v Rydley)
- if a matter is properly triable at common law courts, the interference by equity are
to be prohibited.
- Lord Ellesmere, court of equity chancellor – he was not interfering with common
law but he was merely acting in personam i.e. Directing the injunction against the
person.
- 1690, a bill was forwarded to refrain chancery from interfering with common law
but it was not passed.
- Then onwards, chancellor’s jurisdiction was not seriously challenged. After that,
equity and law worked together.
- Maitland said, “equity had come, not to destroy the law but to fulfill it.”
- Earlier, equity was based on chancellor’s conscience but later developed into rules
and principles based system based on individual’s conscience.
- Therefore, it later developed reference to previous decision trend similar to “stare
decisis”
18 – 19th Century Law of trust was shaped/developed
- The period of great development of equitable jurisdiction.
- Before 1813, court of chancery had only two judges; Lord Chancellor and master
of rolls (as assistant to the chancellor).
- Later, vice chancellors and lord justices were appointed.
- Cases were first heard by vice chancellors or master of rolls.
- Appeals were heard by lord chancellor and/or lord justices
-In mid of 19th century – fusion of common law and chancery to one supreme court.
- First, CLPA 1854 was introduced which gave some equitable powers to CL
courts. For instance, it gave the CL court power to issue injunctions.
- Next, Chancery Amendment Act 1858 (Lord Cairn’s Act) was introduced to
give court of chancery the power to award damages in addition or substitution
for an injunction or an order of specific performance.
- the main problem still existed; there were still two courts running paralelly
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and people had to run to both courts.

- This led to cost and time constraint.
- major changes were made in 1873

- Judicature Act 1873-1875 were introduced (jda 1873-1875) to amend the
conflict.
-it abolished old separate courts of queen’s bench. exchequer, common pleas,
chancery, probate & admiralty division
-JDA established supreme court of judicature with a high court
-the high court had several divisions and each divisions exercised both equitable
and legal jurisdiction
Therefore, should there be any issues, whether equitable or legal, it can be

adjudicated in any division of the same court even though matters were divided
according to division’s subject matter.
There was no longer court of law or court of equity but one court with a complete
jurisdiction.
However, there was still another issue to be considered: how if there was conflict
between common law rules and equitable rules where results would vary?
Section 25(11) Supreme Court Of Judicature Act 1873 (now section 49 Supreme
Court Act 1985):
“…where there is a conflict or variance between the rules of equity and the rules of
common law with reference to the same matter, rules of equity shall prevail”.
(Walsh v Lonsdale (1882) 21 ch.d.9)
The fusion debate
Orthodox view - CJA 1873-1875 has only fused the courts’ E & CL jurisdiction or administration of
common law and equity but not the common law and equity itself.
- the judicature act did not give rise to new cause of action, remedy or defence
which was not available before.
- It still provides same defences, remedies etc provided by both courts before.
- Legal rights remain legal rights, equitable rights remain equitable rights even
though all are administerd under the same roof (one court).
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Ashburner - “the two streams of jurisdiction, though they run in the same channel,
run side by side, and do not mingle their waters”.
Contrary view - Lord Diplock in United Scientific Holdings Ltd v Burnley Borough Council …
Disagreed with ashburner’s statement
said that the two systems of substantive and adjectival law formerly administered
by courts of law and chancery were fused.
Jill E Martin - raises the question as to what is meant by the claim that law and
equity are fused?
Does it mean that there is no difference between legal rights and remedies and
equitable rights and remedies?
- If that is the meaning, it cannot be supported.
- Legal ownership v equitable ownership, legal lease v equitable lease remain
different.
- Legal remedies and equitable remedies remain different even though can be
granted by one court
Napier & Ettrick (lord) v Hunter
Tinsley v Milligan
Equity and law are the same

Example: legal remedy of compensation granted for equitable breach of
contract
(Attorney-General v Guardian Newspapers)
(Aquaculture Corp v New Zealand Green Mussel co ltd)
Confusion remains Swindle v Harrison
Hobhouse L.J. Held :
CL damages were not available for breach of fiduciary duty. This has not been
changed by the judicature act. The act only intended to achieve procedural
improvements in the administration of the law and equity and not to transform
equity interests into legal titles.
They are working closely, developing closely and working together but not yet fused
absolutely
Salt v Cooper
Sir George Jessel Mr held:
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The main object of the act was not the fusion of law and equity but the vesting in
one tribunal of the administration of law and equity in all actions coming before the
tribunal.
But notice Seager v Copydex ltd whereby the court granted damages for breach of
confidence.
Maxims of equity
a. Equity will not suffer a wrong to be without - When there is a wrong act done to someone,
remedy equity will not allow him to be without any
remedies.
- No wrong should go unredressed if it is capable of
being remedied by courts of justice.
- Equity will intervene to protect a right which is not
enforceable at common law due to some technical
defects.
b. Equity acts in personam - The court of chancery’s judgment was acting in
personam i.e. Against the defendant and not the
In personam – against the person property.
In rem – against the property Penn v Lord Baltimore
Chellaram v Chellaram
-Equity acts against the person or anyone against Re Valibhoy Decsd
whom the order is made.
-Equity has jurisdiction over defendant personally. - Limits: the law of the country where the property
-So, failure to comply with an order such as specific is located is different and will not enable execution
performance or an injunction is a contempt of court of the judgment.
and punishable by imprisonment. - Huey Yet Tin Dredging Ltd
c. Equity follows the law Graf v Hope Building Corp
Cardozo CJ: “equity follows the law, but not
- developed to fill the lackings in the common law. slavishly nor always”.
-So, it tries not to be away from common law.
- equity will interfere when there are circumstances Examples of equity follows the law:
where the law would lead to injustice or important -Property law
circumstances disregarded by common law rules,. -The types of proprietary rights developed by equity
-If the law is complete or absolute in governing a basically corresponds to the types of proprietary
matter, equity will not intervene. rights developed in common law.
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-This is because equity operates merely as a gloss

upon the common law. Umbc v Pemungut Hasil Tanah Kota Tinggi
Held: court has no jurisdiction to grant equitable
remedy since nlc has clear provisions.
Abdulrahim v Drahman
d. He who seeks equity must do equity
Lodge v National Union Investment Co Ltd
-Before court grants equitable relief, court would Chillingworth v Chillingworth
want plaintiff to be prepared to do equity i.e. What Re Berkeley Applegate
is fair to defendant by fulfilling his obligations Chappel v Times Newspaper Ltd
under the law (if any) or equity (if any).
-The application of this maxim may be seen in cases
involving illegal loans.
e. He who seeks equity must come with clean -Parties who come to equity for equitable remedies
hands should not have bad past records – his past records
must be clean.
Does that mean a man should lead a blameless life -He who has committed inequity shall not have
in order to claim equitable remedies? equity.
Answer
No. There is a limit. The wrong doing in the past Gascoigne v Gascoigne
must be related to the claim now. Palaniappa Chettiar
Duchess & Tinsley v Milligan Aik Ming
Suntosa Jacob
f. Delay defeats equity Smith v Clay
Delay here is delay in commencing action i.e.
-also known as equity aids the vigilant and not the Delay in the plaintiff exercising his rights.
indolent In law, there are limitation periods.
Reasons: The Limitation Act 1950 sets the limitation

• To ensure that plaintiff does not sleep on periods according to nature of actions.
his rights too long at all or for an indefinite E.g. Civil – 6 years
period – defendant might have been led to Land matters - within 12 years
think or understand that plaintiff has
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waived his rights. Doctrine of laches

• To allow plaintiff to sleep will cause -Where the statute has expressly provided for
damage/destroyal of evidence, memory the time period, equity will not intervene to
lapses (witnesses) or unable to trace make the time shorter or longer.
witnessess – cannot enable the court to -Equity’s period will not be a bar to the suit so
grant fair judgment. long as it is within the limitation act.
• Even though equity is flexible, equity will -Hence, for claims outside the statute
only assist the diligence because equity (limitation act), doctrine of laches will apply
must be fair to both plaintiff and defendant
and not only the plaintiff. Lindsay Petroleum Co v Hurd
Erlanger v New Sombrero Phosphate
Allcard v Skinner
g. Equity is equality Mac Donald v Mac Donald
When husband and wife are still living together, the
-In the absence of sufficient reasons for any other maxim will not be applied to their joint accounts.
basis of division, equity favors equitable division
among those who are entitled to property (for This maxim basically reflects that equity is prone to
division). equal division of property between rival claimants
-Pettit Smith described, “equity did delight in and if no evidence to the contrary or any other
equality”. basis which is more appropriate to divide property.
-This maxim will be applied in division of property
between rival claimants and when there is no other Tai Kwong Goldsmiths & Jewellers V Yap Kook Hee
basis for division & Ors [1995] 1 Mlj 1
Jones v Maynard
h. Equity looks at intention rather than form
-equity is not very concerned about form as the Parkin v Thorold

common law but this does not mean that equity is Wan Naimah v Wan Nawawai
not concerned at all about formalities.
-if the law is very clear that a particular form must
be used, normally, equity will not intervene or only
intervenes minimally without deviating from the
law.
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i. Equity regards as done that which ought to be forms the basis of doctrine in Walsh v Lonsdale
done and Lysaght v Edwards
Where there is a specifically enforceable obligation,

equity regards the parties as already in the position
which they would be in after the performance of
the obligation even though the formalities in law
has not been complied with.
j. Equity will not perfect an imperfect gift Milroy v Lord
-whichever method chosen, the method of devising
must be completed accordingly.
-if the transfer of legal title is ineffective, equity will
not perfect it because, the donee is a volunteer
who had not paid consideration for the gift and
there is no issue of conscience involved.
-therefore, equity will not perfect a gift which is not
perfected.
Jones v Lock
Equitable remedies
Rescission
What - right of a party to a contract to have it set aside
and to be restored to his former position.
- contract remains valid unless and until rescinded.
- distinguished from a contract which is void ab
initio for example a contract which is void on the
ground of illegality.
Role of equity Enables a contract to be set aside in circumstances
where the common law would not. It also can grant
relief by applying the maxim “he who comes to
equity must do equity”.
Restitution in integrum If a contract is rescinded, the party rescinding is
entitled to be restored to the position he would
have been in had the contract not been entered
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into. Hence, damages will not be the remedy here

Grounds
1) mistake
-which is coupled with misrepresentation or fraud Cooper V Phibbs – Common Mistake Enables
that had induced the party to enter into the Rescission Of Contract For Lease
contract.
-in the absence of misrepresentation, the mistake
must be a common mistake i.e. a mistake common
to both parties in order to justify rescission
2) substantial misdiscription in a contract for the
sale of land.
3) undue influence – a defendant’s influence or
dominance over the claimant in procuring his
execution of a document.
Loss of right to rescind
1. Affirmation Clough V London And North Western Rail Co

(1871)
-taking a benefit under it, with knowledge of the
facts giving rise to the right to rescind and of his
legal rights, he will be taken to have waived that
right
-Shown by words, act or may be indicated by lapse
of time –doctrine of laches.
-if the parties can no longer be restored to their
2. restitution in integrum not possible original position
-Erlanger V New Sombrero Phosphate Co (1873)
-any money paid or other property transferred
under the contract must be restored.
-equity is concerned to restore the parties,
especially to defendant, to their former positions as
far as practically possible.
read Cheese V Thomas [ 1994 ] 1 W.L.R. 129
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Oakes v Turquand
- if an innocent third party acquires an interest
3. third party acquiring rights under the contract for value before the claimant
seeks to set it aside. not apply if the third party is a
volunteer.
Rectification
What -discretionary equitable remedy whereby an
instrument which does not accord with the
GR: requires a mistake common to both parties, intentions of the parties to it may be corrected.
whereby the instrument records the agreement in -it operates as an exception to the “parole evidence
a manner contrary to both parties’ intention rule” which does not allow admissibility of oral
evidence to alter a written instrument.
-oral evidence is allowed to be admitted before the
court to prove that the instrument had wrongly
recorded the details intended.
-rectification order by the court has retrospective
effect and it is a judicial remedy – need court’s
order.
Nature of mistake
Unilateral Defences
mistake by one of the parties - bona fide purchaser for value without notice has
rectification can only be granted if he can prove acquired interest under the contract,
that the mistake he made was due to fraud by the - doctrine of laches will bar the claim
other party or that the mistake was known to the - frustration (the contract is no longer capable of
other party being performed).
Specific Performance
What - remedy which directs a party to contract to
perform his or her part of the bargain according to
-it is a remedy in personam. its terms.
- SP order compels a party to contract to perform
what he has undertaken to perform under the
contract.
When SP available When SP not available
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(a) performance of an act agreed to be done wholly (a) contracts for sale of goods
or party of a trust - SP cannot be granted if the good can be
b) no standard to ascertain actual damage caused substituted adequately in the market –contract not
by the non-performance of the agreement. enforceable
-if the good cannot be substituted adequately in the
(c) pecuniary compensation not an adequate relief market, SP can be granted – contract enforceable.
– depends on the type of contract & based on the see illustration (d) to s11(1)(c) sra.
maxim equity follows the law. - SP may not be granted if the good does not
possess special characteristics. same principle as
(d) s11(1)(d) pecuniary compensation cannot be land – unique and has special value.
obtained when it is probable that pecuniary
compensation cannot be got for the non- (b) s11(1)(c): contract for disposal of shares
performance of the act agreed to be done, sp may - if the share is available in the open market, sp
be ordered need not be given.
(e) s11(2) - land is presumed to be a unique - if the share is not available in the open market,
property and sp is more appropriate remedy than very rare type of share, sp may be granted since
damages damages is not an adequate remedy.
(c) contracts to lend money

equity may not enforce a mere loan as contracts to
lend money can be adequately remedied with
monetary compensation.
- if the damage is difficult to quantify, sp may be
granted to enforce the money lending contract.
Loan Investments Corporation Of Australia v
Bonner
Three instances when court shall direct SP of a S16 of SRA 1950
part of contract - S13-S15
Proceeding against the government law prohibits granting of sp and injunctions against
the govt.
see S29 Government Proceedings Act 1956 & S54
Spr 1950.
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contracts not specifically enforceable s20 (a) –(h) sra 1950.

cooperative insurance society ltd v agryll stores
(holdings) ltd
S 27(c) SRA 1950 – sp cannot be given if contract
entered into under mistake of fact or undue
influence.
Discretionary remedy - granting of sp is at the judicial discretion of the
court.
- exercise of discretion. - it is not a matter of right of parties to a contract.
- for whom enforcement cannot be made - discretion of the court whether to grant or to
S23 sra 1950 refuse to grant sp.
- court’s discretion is not arbitrary – has to follow
the guidelines given by the act.
S21(1) SRA 1950.
Ganam d/o Rajamany : court may even refuse to

grant sp when compensation is not an adequate
remedy
Against whom SP cannot be granted S27 (a) –(c) SRA 1950
SP cannot be granted against these people to
comple performance of the contract
Injunction
What - it is an order to restrain a person to whom it is
directed from performing a specified act
(prohibitory), or requiring him to perform a
specified act (mandatory), as the case may be.
Purpose - to protect and preserve legal rights and interests
and to prevent the commission or continuation of a
legal wrong.
Halsbury’s Laws Of Malaysia
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Types
prohibitory Prohibitory injunction is restrictive in nature.

it requires that the defendant refrain from initiating
or committing the prohibited act
mandatory mandatory injunction : s53 sra 1950
mandatory injunction may be granted to prevent

the breach of a contract and to compel the party to
a contract to perform his undertakings under the
contract
perpetual (final) - granted by a decree made at the hearing and upon
the merits of the suit.
maxim: equity will not permit a statute to be used - the defendant is thus perpetually either restrained
as an engine of fraud from interfering with plaintiff’s rights or prohibited
see illustrations S52(a) – (e) SRA 1950 from commission of an act which would be in
contrary to the plaintiff’s rights.
S51(2) SRA 1950
temporary (interlocutory/interim) American Cynamid Co v Ethicon Ltd
“it was to mitigate the risk of injustice to the
plaintiff during the period before that uncertainty
could be resolved that the practice arose of
granting him relief by way of interlocutory
injunctions
consideration by courts
1. “the very first principle of injunction law is that London And Blackwell Rly Co v Cross
prima facie you do not obtain injunctions to
restrain actionable wrongs, for which damages are
the proper remedy”.
2. maxim: he who comes to equity must come with Littlewood v Caldwell
clean hands
the wrongful removal of partnership books led to
the refusal of an injunction to a claimant in the
midst of proceedings to dissolve the partnership
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3. no injunction will be granted to a claimant unless Measures Bros Ltd v Measures

he is ready, willing and able to carry out any
contractual obligations owed to the defendant.
maxim: he who seeks equity must do equity.
4. futility of continuing with existing injunctions led impossibility or futility of performance cases:
directly in the discharge of injunction against Evans v Manchester, Sheffield And Lincolnshire Rly
national newspapers prohibitng the publication of Co.
confidential information. Ag v Observer Ltd
maxim: equity will not act in vain
5. delay and acquiescence
- delay: a claimant of equitable relief must sought for his relief without unreasonable delay.
- acquiescence: the knowing failure to object to wrongdoing may prevent the claimant from seeking to
object to it at some future juncture.
- defence of acquiescence arises where the claimant has assented to the acts of the defendant or has
been passively inactive in a case where the defendantchanges his position.
maxim: delay defeats equity
6. hardship : Wood v Sutcliffe
- element of hardship is a key consideration for the held: where disporportionate hardship will be
court where the injunction sought is interim or caused to the defendant by the grant of an
mandatory. injunction than to the claimant in being confined to
- interim: the rights of the parties are yet to be remedy of damages, the court can refuse to grant
determined. so court will safeguard the defendant injunction.
from potential hardship while he has not been
found to be in breach of the claimant’s rights.
- mandatory: expenditures for the positive act:
hardship outweights the benefit to the claimant?
when injunctions cannot be granted S54 SRA 1950
Injunction to perform negative agreement S55 SRA 1950

Pertama Cabaret Night Club Sdn Bhd v Roman Tam
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Tracing
What -most effective remedy available to a beneficiary
method of asserting ownership to property who has been deprived of the trust property as a
result of breach of trust by a trustee is the remedy
of tracing
-enables the beneficiary (plaintiff) to follow the
ownership of property in to whosever hand’s that
property falls and to recover it
object of remedy to restore to plaintiff that which they have been
deprived of wrongfully, often in breach of trust.
power of tracing remedy -property need not be in the same form as that
when they lost possession because the claimant is
tracing their right of ownership and may enforce
that right of ownership against any property which
has been exchanged for their original property
tracing is a proprietary remedy the plaintiff is asserting their right to the property
per se.
Availability Agip (Africa) Ltd v Jackson
CL and EQ -it is a means to an end, and not the end itself
at CL -tracing at law is available to any person who has

-a means of following legal title to property through legal title to the property and the main purpose is
successive persons until the property is identified in to identify whom the legal person should sue –
the hands of the perosn against whom the remedy hence not available to a beneficiary.
is then pursued with.
Limits in CL
1. remedy stops when the property is no longer in (Lipkin Gorman V Karnaple (1991) ).
identifiable form whereby it is destroyed or the
money is dissipated, then the common law tracing
remedy is of no use
2. stops when the fund is mixed
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Limitation in EQ
1. may extend even to mixed funds.
2. available to a beneficiary who does not have

legal title to the property but only equitable
ownership.
3. it is proprietary in nature in the sense that to (Re Diplock).
trigger the claim, the claimant must have equitable
proprietary interest in the property
4. so a beneficiary can claim for equitable tracing
but a trustee who has legal ownership cannot claim
this remedy.
5. there must have been a fiduciary relationship El Ajau V Dollar Land Holdings
between the claimant who is the equitable owner
of the property and the defendant against whom
he is claiming the property
6. the property of the beneficiaries must have been
transferred wrongfully to another person.
otherwise, there is no right or reason to claim from
the other person.
7. equitable tracing is not possible against a person (Re Diplock).
who is a bona fide purchaser for value of the
property although it may still be possible to trace
from the person who sold the property to the bona
fide purchaser for value
Equitable doctrines
a. Conversion Fletcher v Ashburner
“equity looks on that as done which ought to be as soon as there is a duty to convert money into
done”. land or land into money, equity acts as though the
GR: only applies where there is a duty to convert conversion had taken place even though this may
not actually be so
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b. Election Birmingham v Kirwan

- a person may not take a benefit and reject an “a person cannot accept and reject the same
associated burden. instrument, and this is the foundation of the law of
- a person may not choose between parts of a election”.
single transaction.
Requirement
- intention on the part of the testator to Re Edwards
dispose of certain property
- the property should not in fact be the
testator’s own property
- a benefit should be given by the will to the
true owner of the property
c. Satisfaction Parkin v Thorold

- “equity imputes an intention to fulfill an “courts of equity make a distinction in all cases
obligation”. between that which is a matter of substance and
- where a person is legally obliged to do one thing, that which is a matter of form; and if it finds that by
but in fact does a different thing, the doing of this insisting on the form, the substance will be
may be held to satisfy the legal obligation. defeated, it holds that to be inequitable to allow a
person to insist on such form and thereby defeat
the substance”.
d. Performance - it is closely related to doctrine of satisfaction and
ademption.
- where a person is bound in equity to do an act but
he does another act which he is not bound to do,
then equity may still regard the performance of
that act as performance of original obligation.
e. Ademption Lim Soo Siam v Leow Yong Moey
- doctrine of satisfaction is also applied in
ademption of legacies by portion.
- if a testator makes a will giving his child a legacy
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and later gives a portion to the same child, it is

presumed that the portion was not intended to be
in addition to the legacy, which will therefore be
adeemed
Constitution of trust
The word trust need not to be used Re Kayford
Wan Naimah v Wan Nawawai
Beneficiaries can enforce the trust despite being Paul v Paul
volunteers
Trust can be terminated by the beneficiaries if Saunders v Vautier
-age majority, sound mind, all beneficiaries consent
Development of cases
Strict approach Milroy v Lord
Donor had not complete necessary step. Gift was Re Fry
imperfect
Self-effort rule Re Rose (1949)
Settlor must have taken all steps necessarily to
complete gift. If the rest not within power of donor,
executory trust is created
Transferor had done necessary steps within his Re Rose (1959)

power. The step pending is within 3rd party. Trust
could only be executed after consent
Post Re Rose
Extended rule in Re Rose. Court should not be too Pennington v Waine
eager to strike down gift Choithram v Pagarani
Mascall v Mascall
No trust is created since trust must be created by Re Brook’s Settlement
the settlor
Future property/spes/expectanc
No trust was created as she had no rights in the Re Ellenborough
property at the time of declaration
Declaration relating to future property is void but if Re Bowden’s Settlement
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there is a consideration or value give, it is valid

The trustees are not allowed to sue her under Re Kay’s Settlement
terms of the covenant bc the trust did not exist as
settlor had no rights to the property when the trust
was created
The trustees were entitled to damages for breach Re Cavendish Browne
of the said covenant at common law
Exception to equity will not perfect an imperfect gift
Donatio mortis causa – deathbed gifts; any type of
property Sen v Headley
Ref to in Cain v Moon
3 general requirement
i. gift must be made in contemplation of Re Craven’s Estate
impending death Wikes v Arlington
Tate v Hilbert
Re Kirkley
ii. gift must be made upon the condition that is to Re Lillingston
be absolute and perfected only on the donor’s
death
iii. there must be a delivery of the subject matter Woodard v Woodard (passing savings book, carkey)
of the gift – not mere parting of physical possession Re Lillingston (handing key to safety deposit box)
Rule in Strong v Bird when appointed as executor under her will, the gift
was perfected since an executor acquires all the
testator’s right to sue and hence would be
impossible to sue himself for the debt.
Extension of Strong v Bird Re Gonin
Mother had the intention to replace the gift of the
house with money (the cheque). There was no
continuing intention of giving her the house
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Marriage settlements
Next of kins are not within range of marriage Re Plumpture’s Marriage Settlement
settlement and they remain volunteer – cannot See also Paul v Paul
enforce marriage settlements
Proprietory estoppel & enforcement of promises
Elements to raise PE Pascoe v turner
Dillwyn v Lleweyn
1) Assurance Greasly v Cooks
2) Reliance Gillet v Holt
3) Detriment Jones v Jones
Thorner v Major
Ramsden v Dyson
Gillet v Holt
Yeoman’s Row Management Ltd v Cobbe
Re Basham
PET (Private Express Trust)
Trust need not to be in writing…they must be clear, Grant v Grant
unequivocal and irrevocable Knight v Knight
Foreman v Hazard
Effective trust (3 Certainties)
1) Certainty of intention
whether, on a construction of the words used, and/or from the behaviour of the parties, there is a clear
intention that the property is to be held on trust for the benefit of a third party
The unequivocal intention must be to separate Wright v Atkins
legal and equitable ownership and to impose the
obligations of trusteeship on the holder of the legal
title
Precatory expression and did not connote the Lambe v Eames
necessary intention to create trust.
Mere precatory words which did not impose a legal Re Adams & Kensington Vestry
obligation on the widow. Hence, no trust was
created in favor of the children. The property was
an absolute gift to the wife.
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No trust was created in favor of x and y because the Re Hamilton

words employed did not impose the obligations of
a trustee upon the nieces.
The added words did not create a trust and the Re Diggles
daughter took the property as gift free from this
qualification.
The language of the testator did not disclose Margulies v Margulies
sufficient certainty of intention to create a trust. As
the words used were precatory in nature, the son
could keep the money for himself.
No trust existed because the husband had used Mussorie Bank v Raynor
precatory words. She was the legal and beneficial
owner of the property and, hence, the mortgagee
could sell the property.
The trust document must be considered as a whole Comiskey v Bowring-Hanbury
in ascertaining certainty of intention.
Inferred intention Family context
may be inferred from surrounding circumstances Paul v Constance
Commercial context and unilateral act

Re Kayford
Effect of failure of certainty of intention – property Re Adams V Kensington & Vestry
becomes absolute gift to the donee since there was
no intention to create a trust
2) Certainty of subject matter
-Property is identifiable.
-Must be existing property.
-the settlor must also provide the means.
-A trustee can perform his duties only if he knows exactly what is trust property and
-the trust can only be enforced if both the beneficiary and the court are similarly aware
Classification of property Tangible, intangible

Fungible, non-fungible
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POSSIBILITIES OF DIFFICULTIES Hemmens v Wilson Browne

1) Source of the fund
Macjordan Construction Ltd V Brookmount Erostin
Ltd
2) Conceptual difficulties Palmer v Simmonds
words hired by the settlor must be such that they
identify with clarity, provide the machinery Re Kolb’s Will trusts
Re Golay Morris v Bridgewater
Sprange v Barnard
3) Segregation issues Re London Wine Co
GR is that segregation of the trust property from in order to create a trust it must be possible to
the remaining bulk is necessary. Failure to ascertain with certainty not only what the interest
segregate = void. of the beneficiary is to be but also to what property
it is to attach
identified stock, EX-BULK = successful trust, sourceRe Goldcorp
of trust property is fixed/identifiable
future delivery, GENERIC = no trust, source of trust
property is not fixed/unidentifiable
500 tons wheat was not segregated from the 1000 Re Wait
tons of wheat belonging to the defendant
intangible property – money – requires segregation Mac Construction v Brookmount
– to be kept in separate bank account for trust to
be attached
Coa held that there was a valid trust created over Hunter v Moss
the 50 shares in favor of mr hunter since the shares
were essentially identical and indistinguishable, any
50 shares in the company were capable of forming
the subject matter of the trust
Intangible properties do not need segregation Re Harvard Securities
unlike the chattels in Re London Wine and Re
Goldcorp
Failure of certainty of subject matter
-Trust fail
-Property would result back to the estate of the settlor – residuary estate
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3) Certainty of object
Each beneficiary’s share under the trust must also be allocated/certain.
task of the settlor and the court cannot rewrite the Richardson v Watson
trust instrument in order that the trust is upheld
The difficulty here was that the testator had Boyce v Boyce
prescribed a method of allocation that had
subsequently become impossible. (maria &
Charlotte)
The high court held that the beneficiaries had a Re Knapton
right to choose which house they wanted and the
order of choice was according to the order that
their names appeared in the will
The court was able to uphold the trust by invoking Burrough v Philcox
the maxim “equity is equality”. Hence, each child
was deemed to have an equal share
OBJECTIVE CALCULUS Re Golay’s will trusts
Reasonable income enabled the court to assess the
beneficiary’s life circumstances and calculate
objectively the amount to be given to the
beneficiary
trust by english law, not being a charitable trust, in Re Endacott
order to be effective must have ascertained or
ascertainable beneficiaries
GENERAL REQUIREMENTS Re Txu Europe Group PLC (in administration) – trust
-There must be human beneficiaries can be held for a group/class of beneficiaries but
-Beneficiaries must be individually identified the objective must be clear.
-must be identified as a member of a clearly
defined
Uncertainty
1) Conceptual uncertainty
description of beneficiaries must therefore, be capable of having some ascertainable meaning
must be provided sufficient definitional criteria so that the trustee can carry out the settlor’s instructions
the courts would strain to make sense of the formula that has been used to define objects
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court must exercise, “its judicial knowledge and RE Gulbenkian’s Settlements

experience in the relevant matter, innate common
sense and desire to make sense of the settlor’s or
party’s expressed intentions however obscure and
ambiguous the language that may have been used,
to give a reasonable meaning to that language if it
can do so without doing violence to it”
OLD FRIENDS Brown v Gould
“Old friends” – conceptually uncertain and trust
was held invalid.
“Dear friends” – conceptually uncertain and trust Re Coates
was held invalid
Applied the test in re allen, that defined “friends” Re Barlow’s Will trusts
as people who would clearly fall within the class of
friend (people who had a long relationship with the
settlor based on social contact rather than
business) and held that anyone who could prove
that he was the family member or friend of the
testatrix helen alice barlow would be entitled to
benefit the testamentary provision/establish a trust
RELATIVES Re Poulton’s will trusts
refers to statutory next of kin “For my relations in equal shares”
Relatives was synonymous with next of kin and Re Baden’s deed trust
nearest blood relations, descendants from a
common ancestor
CUSTOMERS Spafax (1965) v Dommett
it was unclear what was actually meant by the word
“customer”
2) certainty in the fixed trust

-the identity and interests of the beneficiaries are set out in the instrument
-trustee enjoys no discretion to decide on distribution of the trust property
-Beneficiaries and beneficial share are determined by the settlor – trustee has no discretion to decide
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i. THE COMPLETE LIST TEST Inland Revenue Commissioners v Broadway

there can be no distribution or division unless all Cottage trust
beneficiaries are known. If the trustee is unable to
draw a complete list of the beneficiaries entitled
under the trust, the trust shall fail for uncertainty of
object
Even if it would be time consuming and expensive, Re Eden
an exhaustive list of beneficiaries must still be
compiled.
Customers – identifiable OT Computers Ltd v First National Tricity Finance

Suppliers – unidentifiable because of the term Ltd
“urgent”
ii. UNTRACEABLE BENEFICIARIES Re Benjamin
The court would take an express legal undertaking
from the identified beneficiaries to repay the
money to any new claimant that comes up later. If
the trustee distributes the properties to the
identified beneficiaries (with unidentified
beneficiaries’ possibility) without benjamin order,
the trustee runs the risk of personal liability to the
newly discovered beneficiary.
iii. EVIDENTIAL CERTAINTY The trust deed may, however, expressly allow the
Concerns the practical difficulty of proving as a fact trustee or a third party to settle any evidential
whether a person is or is not within the class of dispute as to whether a given individual is a
beneficiaries beneficiary
Re Tuck’s settlement
Re Coxen
Re Leek
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3) Certainty in the discretionary trust

- the trustee is given the discretion to select, from among a specified class of beneficiaries, who will
benefit under the trust and often when and to what extent
- trustee may have the powers to decide
- may include a class of beneficiaries such as employees and dependants
Basis: Lord wilberforce said: “equal division is McPhail v Doulton
surely the last thing the settlor ever intended…”
RE BADEN’S DEED TRUST (NO.2)
The major stumbling block concerns the question as to how can a trustee prove that a particular person is
not, for example, a relative of an employee?
i. STAMP L.J
-class test was to be applied literally
-only be satisfied when it could be said of any given postulant that he is or is not a member of the class
“Validity or invalidity is to depend on whether you can say of any individual is or is not a member of the
class…” - to determine the range of objects or possible beneficiaries
-Criticism:
This approach goes back to the test of complete list in a fixed trust as the existence of even a single “don’t
know” would mean that the trust is doomed
ii. SACHS L.J.
-more liberal view and stated that it was up to a claimant to prove positively that he is within a class
-If he fails to do so, then he is regarded as falling outside the class
-Criticism:
It may uphold the discretionary trust even if only one beneficiary can be proven to be within the class.
This would not have been the settlor’s intention when he stated a class of beneficiaries
iii. MEGAW L.J.
-Rejected the strict approach.
-It sufficed that the trustee could say, as regards a substantial number of beneficiaries, that they fell
within the scope of the trust.
-This would be so even where there were others about whom it could not be said with certainty whether
they were in or outside the class.
-Accordingly, it does not matter that there is a category of “don’t know”.
-This approach overcomes the possibility of there being only one beneficiary under a discretionary trust
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ADMINISTRATIVELY UNWORKABLE TRUSTS

concerned with the width of the class specified
Lord wilberforce acknowledged that a class of McPhail v Doulton
beneficiaries might be, “so hopelessly wide as not
to form “anything like a class” so that the trust is
administratively unworkable or …one that cannot
be executed
In short, where the concept is certain, the
beneficiaries are ascertainable and can prove
themselves to be within the group but the group is
too tedious that its impossible for the trustees to
perform their obligations then the trust is declared
invalid
The discretionary trust failed because the class R v District Auditor Ex P. West Yorkshire
consisting of approximately 2.5 million people was Metropolitan County Council
far too large to be workable.
A trust to benefit anyone in the world would be Re Hay’s Settlement trusts

ineffective.
CAPRICIOUSNESS
-For a trust, the disposition must be sensible and rational.
-This is due to the nature of obligation imposed upon a trustee.
-Hence, a trust is void if it is capricious or non-sensible and precludes any proper consideration by the
trustees.
The trustees were directed to block up the doors Brown v Burdett
and windows of a house for 20 years – the direction
was undeniably capricious in nature.
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Implied/Resulting trust
Arises by the operation of law Re Vandervell’s trusts No. 2
Circumstances where RT may arise

A. PAYMENT TO PURCHASE PROPERTY
Presumption Presumption could be rebutted by
Westdeustche Landesbank Girozentrale v 1. Counter presumption of equity (evidence to the

Islington LBC contrary / inconsistent evidence)
1) X did not intend to make a gif to B
2) The money held on trust for X Muschinski v Dodds
3) jointly purchased by X and B; RT arise according Evidence admissible to rebut the presumption
to the proportionate could be in the forms of acts or declarations made
before or at the time of purchase
Calverley v Green
Purchase with X money but register in B’s name – B Walker v Walker
only hold on trust for X It was sufficient to show an intention to benefit the
son by way of gift
Dyer v Dyer
The trust of legal estate results to the person who Palaniappa Chettiar v Arunasalam Chettiar
advances the purchase money Presumption of RT will not arise if the advancement
was made to deceive the law
Wan Naimah v Ahmad Nawawai
RT need not to be in writing 2. Presumption of advancement
Goodfriend v Goodfriend
Goh Koon Suan v Heng Gek Kiau The transferor is deemed to intend to make a gift of
the subject matter of the transfer to transferee
Arises in respect of relationship:

i. husband and wife
Re Ekyn’s Trust
Contrast with wife advancing husband
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Heseltine v Heseltine
Diwell v Farness – not apply for mistress
Eves v Eves – for intended spouse applicable
ii. parent and child

distinguish from father to children and mother to
children
Bennet v Bennet
iii. in loco parentis

Beckford v Beckford
Illegitimate child
Standing v Bowring
Adopted child
Uncle, aunt, grandparents
Ebrand v Dancer
Grandfather
B. PET FAILS DUE TO UNCERTAINTY OF SUBJECT MATTER
C. MONEY IS ADVANCED AS A LOAN FOR SPECIFIC PURPOSE
Quistclose style trust Barclay’s Bank Ltd v Quistclose Investmenents Ltd
Applied in
Carrears Rothmans Ltd
Re Etvr
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Charitable Trust
GR trust created for a specific purpose is void unless
the purpose is for charitable or purposes upheld by
court known as trust of imperfect obligation (non-
charitable purpose trust)
Advantages
Exception to human beneficiary principle AG v Wright
trust is pertaining to religion or public charity, the section 9(1) Government Proceeding Act
Attorney General will have interest
May be Perpetual – No requirement to be subject Commissioners for Special Purposes of Income Tax
to Rules Against Perpetuity . v Pemsel
Fiscal Advantage – charitable trust is not subject to
taxation
Administration – section 39 Trustee Act
charitable trust may be administered by more than
four trustees.
majority vote would suffice and there is no Re Whiteley
requirement for unanimous decision by all the
trustees
Meaning of charity Before: relied on the preamble of Statute of
Elizabeth I (Charitable Uses Act 1601)
Scottish Burial Reform & Crematorium Society v
Glasgow City Council
After: Charities Act 2006

OBJECTIVES
Lord Macnaghten in IRC v PEMSEL
Trusts for relief of poverty;
the marriages of poor maids; The relief of aged, impotent and poor people; and the aid or care of any poor
inhabitants concerning the payments of fifteens, setting out of soldiers and other taxes; the maintenance
of sick and maimed soldiers and mariners; the supportation, aid and help of young tradesmen,
handicapped men and persons decayed;
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Meaning is not fixed

Gifts for the benefit of poor are clearly charitable. Re Darling
Needy persons Re Scarisbrick
victims of disaster Re North Devon & West Somerset Relief Fund

Trust
Persons of limited means Re Gardom
: If his financial resources are insufficient to enable Ballarat Trustees, Executors & Agency
him to obtain all that is necessary not only for the
bare existence but for a modest standard of living,
he is living in poverty
Not necessarily he must be living in destitution. Mary Clark Homes Trustees v Anderson
Re Coulthurst’s Will Trust
class goes short of daily lives Re Niyazi
–the working class could not be considered poor. RE Sander’s will trust
– a trust for the benefit of members of a club who RE Young

had fallen on evil days was accepted as charitable.
- a trust for “ladies of limited means” is charitable RE Gardon

Exception to the rule Re Compton – Isaac v Defriez ; trusts for the relief
of poverty are not subject to the public test
Nexus rule – Re Scarisbrick
The trust was charitable despite the blood nexus
within the group
Dingle v Turner – Valid charitable trust despite the
contractual nexus with settlor and within the group.
trust cannot be in favor of a specific individual = PET
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Trust for establishing a home for elderly Rowntree’s Case

Presbyterians was held to have sufficiently broad
public benefit even if the category of people to
benefit was limited
trust which charged occupants of old folks homes RE Neal
was held charitable
Exclusively for the relief of poverty. No mixed group Re Gwyon
of rich and poor people. Failed under the first heading since it failed to
exclude boys who are affordable
Trusts for advancement of education;
schools of learning, free schools and scholars of universities; the education and preferment of orphans
Meaning
a trust set up for research purposes was not upheld Re Shaw

as a valid charitable trust
Artistic activities include music and drama Royal Choral Society v IRC – establishment of choir
–broadened the meaning of education to include Re Hopkins

research, sports, artistic activities, literature
subject matter of the proposed research is a useful McGovern v Attorney General (Research)
object of study and the research will be
disseminated to others and it would benefit the
public or a sufficiently important section of the
public.
chess is also part of syllabus in schools and that it Re Dupree’s Will Trust (Chess)
would benefit the public
sports is as important as studying as well – football IRC v McMullen
The drawings were of no value; they were just a Re Pinion

junk of mess. Will not benefit the public – art
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The music composition was of value – music Re Delius
Payment of staff in education establishments Case of Christ’s College Cambridge
Establishment of companies to provide education Re Girl’s Public Day School Trust
Establishment of museums Re Houlburne

Subject to nexus rule
Oppenheim v Tobacco Securities
cannot be confined for the benefit of those with
contract or blood nexus
A preference to a private class Re Koettgen’s Will Trust
25% for education 75% for income
Charitable tax relief only for 25% as the remaining
were clearly a PET
IRC v Education Grants Association
80% income 20% charitable purposes. trust cannot
be exempted from tax as it was being operated as a
de facto private trust
Pennycuick J decide based on Oppenheim’s case
Business and charity ICLR v AG
permitted registration as a charitable organisation
since law reports are essential for the study of law.
Must be considered educational. Also valid for
purpose beneficial to community.
Trusts for the advancement of religion;
Definition
Religious purpose is concerned with man’s relations Re South Place Ethical Society
with God
Court does not prefer one religion for another Thornton v Howe
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– court upheld trust to build meeting rooms for Holmes v AG

religious groups as valid charitable trust under this
heading.
Fund on trust for maintenance of temples would be Thirupoorasunthari v AG

valid charitable trust under this heading but not
fund allocated for specific idol.
Fund allocated for the maintenance of worshipping Re King

place is a valid charitable trust under this heading
income for the saying of masses in private was RE Hetherington

considered to provide a tangible benefit to the
public
Subject to public benefit and nexus rule
Trust for other purposes beneficial to the community
the repair of bridges, ports, havens, causeways, churches, sea banks and highways; the relie, stock or
maintenance of houses of correction the relief or redemption of prisoners or captives
1. Animals’ welfare ReWedgwood
services voluntarily and removes the need for Incorporated Council For Law V Ag
statutory or governmental action to provide such
services
purpose is beneficial to the community, does not Re South Place Ethical Society
necessarily mean it is charitable
Requirement of sufficient community benefit
inhabitants of a parish or town or any particular Verge v Sommerville
class of inhabitants may be the objects of such a
gift; but private individuals cannot.
no trust was created since the class of those who IRC v Baddeley
would benefit is too narrowly drawn
a trust must be of public character and cannot be Williams v IRC
restricted to a class within a class
2. Civic amnities
maintenance of town’s bridges/towers/walls AG v Shrewsbury Corp
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maintenance of a crematorium Scottish Burial Case
trust for the support of fire-fighting services RE Wokingham Fire Brigade Trust
life-boats Johnston v Swann

3. Trust for animals
trust for a person “for her work for the welfare of RE MOSS
cats and kittens needing care and attention” is a
valid charitable trust.
residuary estate under a will was to be used for the Re Grove-Grady

eprovision, “refuges for the preservation of all
animals and birds”. is not a charitable trust since
there was no discernable benefit for the
community
4. Political object or purposes GR: not a valid CT
aim to change legislation is political. the law is National Anti-Vivisection Society v IRC
assumed correct and thus any purpose which
promotes a change in the law cannot be charitable
aim was not to change the law but as a subsidiary Bowman v Secular Society
activity could be charitable.
the court was unable to decide whether changes in McGovern v AG
the law is in public interest.
the purpose is not charitable since it was politically Webb v Doherty

motivated
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Recreational purposes
trust provision for the recreational of police officers Irc V Glasgow City Of Police
would not be a charitable purpose
not deemed to improve the condition of life since it IRC v Mullen

would not remedy any identifiable depriviation in
those people
Cy-pres Doctrine
when the provision/gift is so specific,and the object Re Rymer

ceased to exist at the commencement of trust,
there was no charitable intention and cy-pres could
not be applied. the property would result back to
the settlor’s estate.
cy-pres would be applied if the trust provision Biscoe V Jackson

discloses general charitable intention
Enforcement Regulated by the courts – action by the AG
Basic requirement of CT
a. must not be assumed that all public trusts will be
treated as charitable
b. the settlor must have intention to create a Guild v IRC
charitable trust and the attitude of the courts is to
find trust with charitable intention wherever
possible
c. Even where there was a gift expressed in vague RE Koeppler
terms, it would be interpreted as charitable as here
the testator sought to leave money for the
charitable project which he was working on
d. The intention to create a charitable trust must be Houston v Burns
exclusive Settlor declares that the property was to be held on
“charitable or other purposes” Court held that this
was not a valid charitable trust
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“charity or some other purposes in connection Guild v IRC

with it”. This is valid.
word “and” is construed as indicating that the RE Best
other purposes must also be charity or at least
must not detract from the underlying charitable
purposes
if charity is only one of the alternative purposes Williams v Kershaw
such as “benevolent, charitable and religious
purposes”, where the three terms are not to be
equated as equal to charity, then the trust is not
charitable
The trust must be to promote a benefit for the The public benefit test
public or an appreciable section of the society. The a. beneficiaries – not numerically negligible
trust is required to pass the public benefit test b. beneficiaries – no “link” or “nexus” in blood or
contract with the settlor or between themselves
Oppenheim v Tobacco Securities
The trust can be for a class of persons but must not Re Compton
be for a class within a class
Reason: Should not be discriminating a group or Macduff

harm the public benefit. A trust that excludes the
poor people are not charitable trust Note: The trust might be a valid private express
trust even if it fails to be a charitable trust. Hence,
the trust will not enjoy the advantages of a
charitable trust
Impossibility after the commencement of the trust RE Slevin
held: cy-pres applicable because it became on the
1) trust must not be for a specific charitable testator’s death the property of the orphanage and
intention but of general charitable intention with the dissolution of the orphanage that property
fell to be distributed by the crown for some
2) basis = property had passed to a charity before analogous purposes.
its ceasing to exist, whether or not it has been note: the trust must be exclusively for charitable
benefited as a specifically named institution purposes.
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without a general charitable intention, there may

be grounds for cy-pres distribution in any event
Non-Charitable purpose trust
The beneficiary principle Leahy v Attorney General For New South Wales
a requirement that there must be an ascertainable
beneficiary or beneficiaries for the trust to be valid
2 core principle
a. must be at least one beneficiary in whose favor
the court may decree performance of the trust
b. trust requires some property to be held on trust Morice V Bishop Of Durham
for some person as beneficiary Re Endacott
trust for abstract purpose is void since there is no (Leahy v AG of NSW)
beneficiary to enforce the trust. Re Astor’s Settlement Trust
Re Shaw
Conditions for validity of trust of imperfect obligation
1) Must be subject to rules against perpetuity (RAP)
2) Trustee must be willing to carry out the trust
3) Trust does not harm anyone
4) Purpose must be for the purposes upheld by the
courts previously
5) Purpose must be reasonably certain
6) There must be someone who can apply to court
to seek directions where there has been no
compliance by the trustees
a. Maintenance of specific animals
a gift of 50 pounds per annum to maintain the Pettingall v Pettingall
testator’s favourite black mare was held valid
A trust set up for the upkeep of the testator’s Milford v Reynolds
horses were held to be a valid non-charitable
purpose trust
An annuity of 750 pounds for the upkeep fo the Re Dean
testator’s horses for a period of 50 years was Re Dean was criticised that the judge overlooked
upheld as valid by the court the rules against perpetuity requirement.
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Trust set up for the maintenances of specific cats Re Haines

was held to be a valid non-charitable purpose trust
b. Tombs and monuments
A gift of 1000 pounds was left to the trustees upon Re Hooper
trust to “invest the same and to the extent that so Court saved the trust by applying interpretation
far they can legally do” for the care and upkeep of that “so far they can legally do” as to mean 21 years
certain family graves and monuments
A gift of 300 pounds to erect a monument in Musset V Bingle
memory of the testator’s wife’s first husband was
upheld but not a further gift for the upkeep since
the latter was against the rule against perpetuity.
c. Other purposes
For the promotion of hunting of wolves Re Thompson
Saying of masses in church for the settlor’s soul Bourne V Keane
Malaysian Context: Sin Chew Prayers – Chinese (Re Khoo Cheng Teow)
Ancestors Prayers But Subject To 21 Years
Human beneficiaries coupled with purpose Re Sanderson’s Trust
Re Osaba
Re Andrew’s Trust
Approach in Re Denley Goff J Held:
Trust is expressed in the form of a purpose, it may Chose to distinguish trusts for purely abstract
still be deemed valid if it can be said to be for the purposes and trusts that are to the benefit of
direct or indirect benefit of one or more identifiable individuals.
ascertainable individuals Known as Re Denley Type Trust
Gifts to unincorporated associations Conservative and Unionist Central Office v Burrel
Ways to construe gift to unincorporated associations
as a gift to present members of the association at Cocks v Manners
the date of the gift as joint tenants or tenants in
common
Gift made for purpose or object is void Leahy v AG for NSW
as a gift to the members of the association at the Re Rechers Will Trusts And Re Lipinsky’s Will Trust
date of the gift, not as joint tenants but subject to
their contractual rights and liabilities towards one the gift is deemed to be an accretion to the funds of
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another as members of the association. the association - see the constitution of the society
following Re Denley, the gift was not really for a Re Lipinsky’s will trust
purpose but for the benefit of the hull judeans,
ascertainable beneficiaries
members did not control the property nor could Re Grants Will trusts
they change their constitution to enable them to do
as it was subject to the approval of an outside the trust was void for perpetuity as there could be
body, the national executive committee. no disposition of the capital.
Secret trust
Full secret trust Trust and term do not appear on the will
Half secret trust The existence of trust is revealed on the face of the
will but not the term/object of the trust
Court will give effect to the settlor’s intention and Mc Cormick v Grogan
equity will prevent the trustee from acting
unconscionably by asserting beneficial ownership
over the property
Theories
Fraud Court does not want statute to be used as an
engine of fraud
Dehors It does not have to comply with the wills act
provision
Requirements for FST & HST
1. Intention Must intended to create a trust
Ottaway v Norman; Re Snowden
2. Communication of testator’s intention to the FST – anytime before the death of the testator but
trustee not after;
Ottaway v Norman,
Moss v Cooper,
Re Boyes
HST – before or during the execution of the will
Re Keen
Blackwell v Blackwell
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Communication of terms can be constructive as Re Keen

well Re Bateman’s will trust
Communication of trust and terms FST – during lifetime
HST – before or at the time of execution of the will
3. Acceptance of office by trustee Wallgrave v Tebbs
Ottaway v Norman
Trustee silent: implied acceptance
Wills act provision did not apply for secret Re Young
beneficiaries to be witness of the will
Trustee pre-deceased the testator FST – trust fails and RT apply
HST – trust will not fail for want of trustee
Re Willis
Court appoint another trustee: Blackwell v
Blackwell
Possible for trustee to disclaim the office provided
the disclaimer is communicated to the settlor – Re
Maddock
Secret beneficiary pre-deceased the testator Re Gardner
Contrast with – Re Cobishley’s trust
Trust fail. Gift lapse and result back to testator
Proving ST The person claiming has high standard of proof –
civil case on the balance of probability
Effect of failure of communication FST – trustee will take property as gift. Trust fails
HST – property results back to testator
Constructive trust
characteristic
1) Arises by operation of law
2) Does not depend on express/implied intention
3) Depends on conduct of parties Khor Kuek Jin v Haji Yasin & Ors
Definition
No clear definition of CT as to not restrict the court Carl Zeiss Stiftung v Herbert Smith & Co
CT is trust which imposed by equity in order to Snell’s Principles of Equity
satisfy the demands of justice w/o referring to the
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intentions of the parties

Millet LJ – CT arises by the operation of law Paragon Finance PLC v DB Thackerar & Co
whenever it would be unconscionable for the
owner to assert his own beneficial interest in the
property and deny the beneficial interest of other
If the constructive trust is an equitable remedy it Re Polly Peck International PLC (in administration)
will exist from the time an order is made by the v MacIntosh
court
Areas where constructive trust will be imposed
a. Trustee as a result of breach of fiduciary duty
b. Stranger who has dealt with or received property
which has reached his hands as a result of a breach
of fiduciary duty
c. Trustee or 3rd person (fraudulent or inequitable
conduct)
d. Vendor as a constructive trustee
When takes effect Re Sharpe
The moment at which the conduct has given rise to
CT subject to any court order to the contrary
CT is ‘imposed by law whenever justice and good Hussey v Palmer
conscience require it
Recognised categories of CT
1) Trustee or fiduciary making unauthorized profit Bray v Ford
He is not allowed to put himself in a position where
his interst and his duty conflict
Keech v Sanford
Claimant is required to establish: he had breached his duty as a trustee since he
- D holds fiduciary position gained knowledge about the lease while being in his
- D obtained benefit derived from the property position as a trustee for the lease
- there is causal connection btw the relationship
and the benefit
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Boardman v Phipps
Unauthorised remuneration or financial benefit
received by trustee or fiduciary
AG for Hong Kong v Reid
Bribes or secret profits received by fiduciaries
IDC v Cooley
Director as a fiduciary in a company, misuses
property or misapplies knowledge or obtains profits
or bribes/profits, a constructive trust arises
Tan Kok Ming Phillip v Royal Brunei Airlines Sdn
Bhd
Wright v Morgan
If a trustee resigns with the motive of purchasing
the trust property, the sale is voidable at the option
of the beneficiaries even if the trustees offer higher
price
Petitt v Petitt
Proprietary rights in the family home
Re Thompson
Trustee must avoid conflicting interest – e.g. avoid
indulging into business of similar nature as the trust
business
Quistclose case : the bank is holding on
constructive trust the primary trust.
2) Strangers as constructive trustees Barnes v Addy
strangers to a trust or agents of the trustee
becomes a constructive trustee if he intermeddles
with trust property
trustee de son tort – knowingly receiving or dealing
with trust property for his own use
Plaintiff must prove:

- Defendant has received trust money
-Defendant knew the money paid were trust money
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-Defendant knew of circumstances which made the

payment a misapplication of trust moneys
Evans v European Bank
Banks will not generally be treated as having
received of funds placed in accounts, unless they
The five categories are: apply the proceeds to the reduction of an overdraft,
(1) actual knowledge; or for security
(2) wilfully shutting one’s eyes to the obvious; Baden v Societe Generale
(3) wilfully and recklessly failing to make such Peter Gibson J stated that there were five
inquiries as an honest and reasonable person categories of knowledge in a recipient that were
would make; relevant to the decision to impose a constructive
(4) knowledge of circumstances which would trust
indicate the facts to an honest and reasonable Dishonest assistance or accessory liability
person; Royal Brunei Airlines v Tan
(5) knowledge of circumstances which would put an A stranger to a trust is liable to make good resulting
honest and reasonable person on inquiry loss if he dishonestly procured or assisted in a
breach of trust or fiduciary obligation
Constructive trust to remedy unconscionable conduct
A constructive trust may be imposed even though Turner v Dunne
the person held to be trustee had no intention to
create a trust or hold property on trust
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Topic Issue Case(s)

Remedies - damages/monetary compensation. - developed the remedy of specific

Conflict between common law and chancery (court of equity)

and people had to run to both courts.

- major changes were made in 1873

Therefore, should there be any issues, whether equitable or legal, it can be

Equity and law are the same

-This is because equity operates merely as a gloss

Reasons: The Limitation Act 1950 sets the limitation

waived his rights. Doctrine of laches

-equity is not very concerned about form as the Parkin v Thorold

Where there is a specifically enforceable obligation,

into. Hence, damages will not be the remedy here

1. Affirmation Clough V London And North Western Rail Co

(c) contracts to lend money

contracts not specifically enforceable s20 (a) –(h) sra 1950.

S21(1) SRA 1950.

Ganam d/o Rajamany : court may even refuse to

prohibitory Prohibitory injunction is restrictive in nature.

mandatory injunction may be granted to prevent

3. no injunction will be granted to a claimant unless Measures Bros Ltd v Measures

when injunctions cannot be granted S54 SRA 1950

Injunction to perform negative agreement S55 SRA 1950

at CL -tracing at law is available to any person who has

2. available to a beneficiary who does not have

b. Election Birmingham v Kirwan

c. Satisfaction Parkin v Thorold

and later gives a portion to the same child, it is

Transferor had done necessary steps within his Re Rose (1959)

there is a consideration or value give, it is valid

No trust was created in favor of x and y because the Re Hamilton

Commercial context and unilateral act

Classification of property Tangible, intangible

POSSIBILITIES OF DIFFICULTIES Hemmens v Wilson Browne

court must exercise, “its judicial knowledge and RE Gulbenkian’s Settlements

2) certainty in the fixed trust

i. THE COMPLETE LIST TEST Inland Revenue Commissioners v Broadway

Customers – identifiable OT Computers Ltd v First National Tricity Finance

3) Certainty in the discretionary trust

ADMINISTRATIVELY UNWORKABLE TRUSTS

A trust to benefit anyone in the world would be Re Hay’s Settlement trusts

Circumstances where RT may arise

Westdeustche Landesbank Girozentrale v 1. Counter presumption of equity (evidence to the

Arises in respect of relationship:

ii. parent and child

iii. in loco parentis

After: Charities Act 2006

Meaning is not fixed

Needy persons Re Scarisbrick

victims of disaster Re North Devon & West Somerset Relief Fund

Persons of limited means Re Gardom

class goes short of daily lives Re Niyazi

– a trust for the benefit of members of a club who RE Young

- a trust for “ladies of limited means” is charitable RE Gardon

Trust for establishing a home for elderly Rowntree’s Case

a trust set up for research purposes was not upheld Re Shaw

–broadened the meaning of education to include Re Hopkins

sports is as important as studying as well – football IRC v McMullen

The drawings were of no value; they were just a Re Pinion

The music composition was of value – music Re Delius

Payment of staff in education establishments Case of Christ’s College Cambridge