Hunter V Moss Criticisms

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Certainty of subject matter and the critcisms of hunter v moss When creating an express trust knight and knight articulated that there must be certainty of subject matter, certainty of intention and certainty of objects. Certainty of subject matter is where there must be an identification of the trust property and certainty as to whom is which part of the trust property to be held. In relation to uncertainty of beneficial interests, the trust will fail where the method of distribution is stipulated by the sethlow but cannot take effect (Boyce v Boyce). However the trust will not fail where the method of distribution is not stipulated by the sethlow leaving the court to intervene (re napton). If there is an effect of lack of certainty in respect of the beneficial interests in the trust property a resulting trust will be imposed because equity hates a vacuum, the trust property will therefore be held on trust for the sethlow or if he is dead for his estate. In regards to identification of the trust property If there is a lack of a proper identification of the trust property, the trust will fail because the property never leaves the sethlow and there is no need for a resulting trust. However the term residue estate will not fail a trust because it means all the remaining trust property. It is quantifiable

A problem occurs where the wording used is not sufficiently certain as to know what property is intended to be held on trust and where the property that is held on trust is not segregated by the sethlow from a larger amount of similar property he owns. . If a trust fund is not segregated then there will be no certainty of subject matter and the trust will fail. The problem is identifying the property that constitutes the trust fund. The property must be identifiable otherwise the courts would not know which property is to be distributed to the beneficiaries. It must be shown that the sethlow intended to create a trust over specified property. In Palmer v Simmons ‘the bulk of her estate’ was not sufficiently certain and ‘remaining part of what is left’ also (sprange v barnard). However in Re Golay the court looked at the tester’s intention’. To deduce what ‘reasonable income’ meant Oliver J articulated the orthodox approach or rule in re London wine where property must be segregated form a lager mass of similar property for there to be a valid trust he said “To create a trust it must be possible to ascertain with certainty not only what the interest of the beneficiary is to be but to what property it is to attach.” “The ‘mere declaration that a given number of animals out of the flock would be held on trust would not create a trust’. This approach was followed in re Goldcorp which affirmed that property must be separately identifiable before it can be held on a valid trust. The contention arose with Hunter v Moss which did not follow the orthodox approach where Hunter was entitled 50 out of moss’s 1000 shares. Under the Goldcorp rule there would be no trust because the property was not separated however Dillon J said there was a valid trust. The rationale for this controversial decision was that it would have made no difference which 50 shares would have been given because they were all identical. So here there was no need to segregate the property if it was intangible. The problem with this case is that Dillon is giving the trustee of the will who only has legal title subject to the terms of the trust an executor status, i.e. putting him in the shoes of the sethlow. This is a problem because the executor acquires legal title in all of the deceased’s person’s property with a power to make a division of property in accordance with the terms of the will as personal representative of the deceased. Whereas the inter vivos trustee makes a division subject to the terms of the trust. So inter vivos trustee cannot know what property falls under his remit whereas the executor knows that he has title in the whole property...
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