How to structure a problem question on certainties?!

Hi,
As above realy, how would I approach a problem question on certainties (equity and trusts).
Is there a basic structure that I should follow?

Thank you, Sammi

Not really an exact structure but i always go through each certainty in turn for each provision. Always go through all 3 even if just saying something like "there is clear certainty of subject matter here as the amount is specified"

- mention three certainties are required
-go through whether there is certainty of intention (precatory words?)
- go through whether there is certainty of subject matter (gift defined? order specified?
- go through certainty of objects (most difficult - look at what type of disposition it is, then apply the relevant test, consider administrative unworkability/capriciousness)
-sum up

I may have missed some things out there, apologies if i have.

- Three certainties, constitution and formalities
- Terms of the trust and powers of the trustees: think carefully about what the terms of the trust are and what the trust actually entails, think about the different ways in which it could be understood. ALso think about what the trustees' powers are, if relevant.
- Breach: has there been a breach? To answer this you need to carefully consider the duties of the trustees and think about what they have breached any of those duties.
- Personal remedy against the trustees: Which trustees might be personally liable and why? What is the quantum
- Personal remedy against third partes: Might knowing receipt or an action for money had and received be available?
- Proprietary remedies: Is a proprietary remedy available? If so, are there any advantages to a proprietary remedy?

Of course, you need to use your discretion. In most equity questions, many of the above points won't be an issue; questions will generally be focused on certainties/formalities/constitution; terms, powers and breach; or remedies. But its a useful checklist to run through, there are often important points that people miss so do think about everything.

There will be additional issues where a resulting, constructive or Quistclose trust is involved, though even then I think you can break things down into the three fundamental questions of 1) where there is a trust, 2) what the trustees can do and what they can't, 3) remedies.

Thank you!!
You are both amazing.

Zacho - I thought there would be more to it, but it seems that maybe I was overcompicating it!! Although,is there any chance you could explain the certainty of objects..... I get the first two stages (intention and subject matter) but I get confused at this point.



xx

What i wrote is the basic outline i adopt to a question dealing with 3 certainties. There is a lot more to include in each certainty from the case law.

With certainty of objects, all you need to do is be able to identify with sufficient certainty who the beneficiaries of the trust are. Where the beneficiary is named in the will, there are no problems. However, where the provision gives a class of objects you have issues (i.e. "friends" "relatives "work buddies").

In this case, you decide the type of disposition (fixed trust, discretionary trust, power) and then apply the relevant test ("complete list" or "is or is not") to see if the provision passes the test. Consider relevant case law here as well. Then consider whether the gift is administrably unworkable or capricious.

I think that is everything. Does that make sense?

It makes sense, but could you possibly claify a few more things (if you don't mind!)?

Firstly, how would you decide the type of disposition? Is it just through the info given in the scenario?

And what is meant by unworkable/capricious - how would I know this?

Thank you!!!

Isn't unworkable more related to discretionary trusts, and capriciousness linked to powers?

I'd never really thought about it like that. i know only a trust can be unworkable. I guess i made a mistake above. I think i need to go over powers again.

hi guys, does anyone have any case examples for unworkability?

thank you :-)