Secondly if intention is relevant to explain where resulting trusts are recognized, it cannot be the intention of the trustee, the person who gets the legal title. It has to be the intention of the transferor. Thirdly, if intention is presumed, it is not clear as to what the transferor is being presumed to have intended.Intention in Resulting TrustIn Vandervell, he thought he had divested himself of his interest. The resulting trust arose irrespective of what he intended. It arose automaticallyAutomatic trusts for Megarry: presumptions pay no part in this type of trustIn Westdeutsche, Lord B-W refers to the “common intention of the parties” – is heconfusing resulting trusts with constructive trusts?Air Jamaica– resulting trust is the response, “to the absence of any intention on [the settlor’s part] to pass a beneficial interest to the recipient” Lord Millett.Summary of OpinionsFor Megarry, resulting trust arises automatically by operation of the law. For Lord Browne-Wilkinson, there was no resulting trust; absence of ownership means it goes bona vacantiaDavid Hayton – don’t look for an intention to retain, look for an intention to giveLord Millett – it is all about intention, but it is not about intention to retain it is an absence of intention to give the property awayCircumstances when resulting trusts will arise:1-Where there is a failure of an express trustUncertainty Vandervell -For lack of certainty over the trust of the bought back shares, a resulting trust arose in the favour of Mr VandervellLack of formalitiesAn express trust in land could fail for a lack of formalities.It must be done in writing LPA s 53(1)(b)Failure of a condition precedentRe Cochrane’s ST Mrs. Cochrane brought to her marriage a trust fund. The terms of the settlement stated that the income of the fund was to be paid to the wife but there was a
condition – so long as she resides with him and remains faithful to himThe wife left the husband and then he died. She was not entitled to the trust fund.2- Where there is a surplus of trust propertyWhen a person parts with their money but they gave it for a specific purpose, they retain an interest in the remainder of property should the purpose stop or not be fulfilled.Re AbbottMoney given for the purpose of support and maintenance of two deaf and mute women – funded by subscribersWhen sisters died, there remained a large surplus of money still in the fund. When purpose concluded – money resulted back to the subscribers Fund was never intended to become the absolute property of the sistersRe Andrew’s Trust FundA fund was generated for the children of a deceased clergymen After they had finished their formal education, there was a surplus leftRather than hold that the money was on a resulting trust for subscribers, the judgeheld that the education (purpose for which the money was given) could be broadly
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Law, Wills and trusts, Trust law, Constructive Trust