Settlor must have shown an objective intention to create a trust would a

Settlor must have shown an objective intention to

  • Monash University
  • LAW 4170
  • sugarholicmaniac
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Settlor must have shown an objective intention to create a trust: would a reasonable person consider that the settlor intended to create a trust? ( Byrnes overturned subjective approach in Joliffe) Settlor must have indicated, by words (oral or writing) or conduct, that he intended to create a trust. N.B. Subjective intention still relevant where there are grounds to challenge the transaction – vitiating factor (eg mistake, undue influence) or sham ( Byrnes, Heydon and Crennan JJ) (a) If there is a trust deed and it is unambiguous Then intention is not the focus of question – state that the deed is unambiguous and move on Byrnes : the opening language of the deed described it as a trust twice Clause 1 (a key operative provision) used the language of trust Surrounding circumstances – creation of new trust document affirmed intention to create trust (b) If ambiguous (e.g. no trust deed – just words) Look to surrounding circumstances (objectively) (Paul v Constance) Not necessary to use the word “trust” (Re Armstrong) Settlor does not even need to realise they are creating a trust (Re Armstrong)
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4 TUTORIAL 1 VALIDITY/ INTENTION What sort of things are you looking for if ambiguous? Look for specific intention to benefit a third party (Re Armstrong): George said to bank manager that he wanted to create a fund to benefit his sons. Bank manager recommended putting in a term deposit (2 years) for the benefit of his 2 sons after he died. The sons were to be absolutely entitled to the money on his death.
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  • Three '18
  • Dr Susan Barkehall Thomas
  • beneficiary, Wills and trusts, Trust law, Settlor, valid express trust

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