Trust

• Three certainties:

  Intention

  Subject-matter (property)

  Objects (persons or purposes)
• Intent to make a gift intent to create a trust (Jones v Lock– the case of father, baby & the cheque)
• property ‘is as much yours as mine’ = a trust (Paul v Constance)
• ‘to be disposed of in any way wife may think best for benefit of her & family’ = no trust (Lambe v Eames)
• Certainty of Intention -The intention of the settlor to create the trust
• Certainty of Subject Matter-It must be ascertainable what property is subject to the trust
• Certainty of Objects-It must be certain who is to benefit from the trust.
• Joint Tenancy:

  Unity of possession

  Unity of interest

  Unity of time

  Unity of title
• Unity of Possession: Each joint tenant has an equal right to possess the entire property.
• Unity of Interest: Each joint tenant holds an equal ownership interest in the property
• Unity of Time: All joint tenants acquire their interests at the same time.
• Unity of Title: All joint tenants acquire their interests through the same legal document.
• Right of Survivorship: Upon the death of one joint tenant, their share automatically passes to the surviving joint tenant(s).
• Williams v Hensman (1861): Established the four unities required for a joint tenancy
• Tenancy in Common: A form of joint ownership is when it is assumed the tenants have an equal share of the property.
• Joint tendency: A tendency for two or more variables to vary together.
• Tenancy in Common:

  No Equality Requirement

  Unity of Time

  Unity of Title
• No Equality Requirement: Tenants in common can hold unequal shares of the property
• Unity of Time: All tenants in common acquire their interests at the same time
• Unity of Title: All tenants in common acquire their interests through the same legal document
• Declaration of Intention: Advisable to declare the intention to hold the property as tenants in common in the legal document.
• No Right of Survivorship: Each tenant in common's share forms part of their estate upon death
• Legal Authorities: Stack v Dowden [2007]: Emphasized the importance of intentions and conduct in determining co-ownership
• Joint Tenancy: Right of survivorship, equal shares, no individual share, unity of possession, no right to dispose without severance.
• Tenancy in Common: No right of survivorship, individual shares, unity of possession, right to dispose, no severance by act of one.
• Re Denley's Trust Deed: so long as the people benefitting from a trust can at least be said to have a direct and tangible interest, to have the locus standi to enforce a trust, it would be valid.
• The three certainties required for a valid express trust include certainty of intention, object, and subject matter.
•  A declaration of trust of land 'must be manifested and proved by some writing' (Law of Property Act 1925, section 53(1)(b)).
• The legal owner may, at the time of purchase or after, declare in writing that he/she holds the property on an express trust for another person or for him/herself and another as joint tenants or as tenants in common.
• joint tenancies and tenancies in common are situations where you have more than one legal owner (shared legal ownership), and the beneficial interest (i.e. equitable interest) those co-owners can have.

  In addition to shared legal ownership, the equitable title can be shared even when the legal title is vested in one person.
• Tenancy in Common


  • Flexibility in Ownership Shares
  • Transferability
  • No Right of Survivorship
  • Partition Action
  • Preservation of Individual Control
• Flexibility in Ownership Shares


  Unlike joint tenancy, which requires equal ownership shares, tenancy in common allows for flexibility in ownership interests. As a beneficiary under tenancy in common, you can hold a distinct, individual share of the property, which may be equal or unequal to the shares of other co-owners. This flexibility allows for customization of ownership arrangements based on individual contributions or preferences.
• Transferability


  Tenancy in common provides greater flexibility in transferring ownership interests. As a beneficiary, you have the right to sell, transfer, or mortgage your individual share of the property without the consent of the other co-owners. This flexibility can be advantageous for estate planning, investment, or liquidity purposes.
• No Right of Survivorship


  Unlike joint tenancy, there is no right of survivorship in tenancy in common. This means that as a beneficiary, you can designate your share of the property to your chosen heirs or beneficiaries through your will or estate plan, rather than automatically passing to the surviving co-owners.
• Partition Action


  In the event of disagreements or disputes among co-owners of property held as tenants in common, any co-owner has the right to seek a partition action. This legal remedy allows for the division or sale of the property, enabling you to realize the value of your ownership interest independently of the other co-owners.
• Preservation of Individual Control


  Tenancy in common preserves individual control over your ownership share of the property. You can make decisions regarding your share independently, without the need for consensus or agreement from the other co-owners.
• Right of Survivorship


  One of the primary benefits of joint tenancy is the right of survivorship. As a beneficiary under joint tenancy, you are assured that upon the death of a co-owner, your ownership interest in the property automatically increases without the need for probate proceedings. This ensures a seamless transfer of ownership to the surviving joint tenants.
• Avoidance of Probate


  Joint tenancy allows for the avoidance of probate, which can be a lengthy and costly legal process. By bypassing probate, the property can transfer directly to the surviving joint tenants, saving time and money on estate administration.
• Equal Ownership and Control


  In joint tenancy, each co-owner holds an equal ownership interest in the property. This means that you have an equal say in decisions regarding the management and use of the property, providing a sense of control and equality among the co-owners.
• Continuity of Ownership


  Joint tenancy ensures continuity of ownership, as the property automatically passes to the surviving joint tenants upon the death of a co-owner. This stability can be beneficial for long-term planning and investment purposes.