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91 Pages • Complete Study Notes • Year: Pre-2021
CERTAINTY OF INTENTION to create a trust Onus of proof lies with the person claiming there is a trust. FOR INTER VIVOS TRUST APPLY OBJECTIVE INTENTION TEST (Byrnes) Rule: The HC in Byrnes overturned the subjective approach in Joliffe and held that the settlor’s intention to create a trust is to be determined OBJECTIVELY, not subjectively. Court will have to look at surrounding factual matrix to determine what the words would convey to a reasonable person (Byrnes). Application when there is NO DOUBT to the intention: There is no doubt that this clause is intended to create a trust. Application: For trusts that are created ORALLY Court will look at surrounding circumstances to determine whether intention is manifested (Paul v Constance). Evidence from after the trust may have been created may be admissible (Paul v Constance) Application: For trust in WRITING A. Clear and unambiguous words 1. [S] has used the following clear and unambiguous words in the trust deed (Apply facts: On trust etc) 2 2. This manifests an objective intention to create a trust and is difficult for [Person] to challenge (Byrnes) a) Evidence of surrounding circumstances is usually irrelevant.
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