Hunter V Moss Criticisms

1441 words 6 pages
Certainty of subject matter and the critcisms of hunter v moss
When creating an express trust knight and knight articulated that there must be certainty of subject matter, certainty of intention and certainty of objects.
Certainty of subject matter is where there must be an identification of the trust property and certainty as to whom is which part of the trust property to be held. In relation to uncertainty of beneficial interests, the trust will fail where the method of distribution is stipulated by the sethlow but cannot take effect (Boyce v Boyce). However the trust will not fail where the method of distribution is not stipulated by the sethlow leaving the court to intervene (re napton). If there is an effect of lack of certainty in
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Whereas the inter vivos trustee makes a division subject to the terms of the trust. So inter vivos trustee cannot know what property falls under his remit whereas the executor knows that he has title in the whole property formally vested in the testator so there is no uncertainty of subject matter.
Dillon did not make a distinction between tangible and intangible property. But did say that “the London wine case concerned chattels and this case concerned a title over shares”
This case has been applied in Holland v Newbury where the securities were intangible property and therefore did not require segregation. This may mean that Hunter v Moss is precedent because it was resolved in the C of A whereas Goldcorp was decided in the Privy Council and can only be deemed a persuasive authority.
However the earlier case of MacJordan v Brookemount may have supported Dillon because the judge thought it was not necessary to segregate part of the bank account from a larger amount of money in the same account. However here there was no identifiable bank account in the first place to establish a trust so it was void.
Other problems with Hunter v Moss is that it ignores traditional property law which requires there to be specific and identifiable property which is the subject to a trust. There was only a valid trust because there were sufficient shares to satisfy the claim. The C of A could not have decided