As explained by Norse J. in Re Cleaver, this difference determines whether or not a valid trust is created or not. If the words used impose an honourable duty there is no valid trust capable of enforcement. 5 Despite this argument, one must remember that the binding affect of the words used will be construed by the courts with reference to the certainty of intention. In Tana & Anor V Tana & Anor, the Chancery Division found that “certainty of intention is in many ways the most”important’of the three certainties. 6 Once the court is satisfied that the “declarant had the requisite intention it will strive to validate it. ”7 Based on this precedent, it is very likely that Joe saying that he hoped that this money would help make Emily better will operate to convey his intention that a trust for the benefit of Emily’s medical care be created.
Since only part of the trust fund was necessary for Emily’s care, the remaining funds will properly fall to Joe’s estate and revolve to Daisy. Exactly the same argument applies to Mary’s trust fund which was set up as an express purpose trust.
The purpose for which the trust was established no longer exists once Mary died. 8 As a result the trust disolves and the remaining funds will revert to the settler’s estate and Daisy will take the funds as sole benefiary. Question Two Typically the disposition of any interest in realty must be evidenced in writing. Section 52 of the Law of Property Act 1925 provides that: “…all conveyances of land, or any interest therein are void for the purposes of conveying or creating a legal estate unless made by deed. ”9 Common sense dictates that this requirement is necessary since realty unlike perosnalty cannot be physically delivered.
However, the law recognizes that other interests in property can be transferred in the absence of the execution of a deed of conveyance. This is the difficulty with the ruling in Lohia v Lohia which establishes the abrogation of a resulting trust in respect of a voluntary convenyance. There is good law that beneficial interests in realty can be disposed of outside of a written disposition of the same. Sir Christopher Slade said the following with regards to the disposition of a beneficial interest in circumstances where the same has not been disposed of by deed: “In the absence of any declaration of trust, the parties respective beneficial interests in the property fall to be determined not by reference to any broad concepts of justice, but by reference to the principles governing the creation or operation of resulting, implied or constructive trusts which by s 53(2) of the Law of Property Act 1925 are exempted from the general requirements of writing imposed by s 53(1). ”10 The imposition of a constructive or resulting trust is primarily a judicial function.
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