Hunter V Moss Criticisms

deduction of subject matter and the critcisms of hunter v moss When creating an express swan knight and knight articulated that in that respect must(prenominal) be certainty of subject matter, certainty of intention and certainty of objects. Certainty of subject matter is where in that location must be an identification of the self-assurance holding and certainty as to whom is which part of the cuss plaza to be held. In relation to uncertainty of beneficial interests, the confide give spill where the method of distri exactlyion is stipulated by the sethlow but can non take effect (Boyce v Boyce).However the put leave behind non fail where the method of distribution is not stipulated by the sethlow leaving the beg to intervene (re napton). If in that respect is an effect of want of certainty in respect of the beneficial interests in the trust spot a resulting trust will be imposed because equity hates a vacuum, the trust property will therefore be held on trust fo r the sethlow or if he is dead for his estate.In regards to identification of the trust property If there is a lack of a proper identification of the trust property, the trust will fail because the property never leaves the sethlow and there is no pauperization for a resulting trust. However the term residue estate will not fail a trust because it stand fors all the remain trust property. It is quantifiable A problem occurs where the wording used is not sufficiently certain as to know what property is intended to be held on trust and where the property that is held on trust is not segregated by the sethlow from a larger amount of similar property he owns. If a trust fund is not segregated then there will be no certainty of subject matter and the trust will fail. The problem is identifying the property that constitutes the trust fund. The property must be diagnosable otherwise the courts would not know which property is to be distributed to the beneficiaries. It must be shown tha t the sethlow intended to create a trust over specified property. In Palmer v Simmons the bulk of her estate was not sufficiently certain and remaining part of what is left also (sprange v barnard).However in Re Golay the court looked at the testers intention. To deduce what reasonable income meant Oliver J articulated the orthodox show up or rule in re London wine where property must be segregated be a lager mass of similar property for there to be a well-grounded trust he said To create a trust it must be possible to ascertain with certainty not however what the interest of the beneficiary is to be but to what property it is to attach. The real declaration that a given number of animals out of the flock would be held on trust would not create a trust. This glide path was followed in re Goldcorp which affirmed that property must be on an individual basis identifiable before it can be held on a reas geniusd trust. The contention arose with huntsman v Moss which did not foll ow the orthodox approach where huntsman was entitled 50 out of mosss 1000 shares. under the Goldcorp rule there would be no trust because the property was not separated however Dillon J said there was a valid trust.The rationale for this controversial decision was that it would have made no going away which 50 shares would have been given because they were all identical. So here there was no need to segregate the property if it was intangible. The problem with this case is that Dillon is talent the regent of the will who only has legitimate title subject to the toll of the trust an executor status, i. e. putting him in the shoes of the sethlow.This is a problem because the executor acquires legal title in all of the deceaseds persons property with a power to make a division of property in accordance with the terms of the will as personal vocalisation of the deceased. Whereas the inter vivos trustee makes a division subject to the terms of the trust. So inter vivos trustee cann ot know what property falls under his parry 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. simply did say that the London wine case pertain 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 hunting watch 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 support Dillon because the judge thought it was not necessary to segregate part of the situate measure from a larger amount of money in the homogeneous greenback. However here there was no identifiable bank account in the first place to e stablish 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. at that place was only a valid trust because there were ufficient shares to satisfy the claim. The C of A could not have decided this in Goldcorp because there were much claims than there was property to satisfy them. If there was a distinction to be made between cases in which it would be valid to hold one trust valid despite insufficient segregation and another trust invalid on grounds of insufficient segregation it would not be based on whether the property was tangible or intangible but rather whether the legal owner of that property was solvent or belly-up(predicate) which in Goldcorp he was insolvent..So it seems Dillon ljs reasoning is ill founded. Another problem is that why should there be a specific rule for intangible property. clear property could be subject to the same rules. In Caswell v Powell bushels of stalk are indistinguishable and that in relation to a 1000 eggs bearings it does not matter if 500 were separated because they would be all the same. So the distinction based on tangible and intangible property is unaccented and that it would be better to base a distinction on whether the trustee was solvent or insolvent.The reaction to Hunter v Moss has been mixed Alistair Hudson says that Hunter v Moss is concerned with achieving justice between the parties. Because Goldcorp concerned the allocation of property whereas HAUNTER V Moss the court was concerned with preventing the employer from benefiting from a breach of contract. However David Hayton argues that Dillons judgment may well come to be stigmatised as ascertain perilously close to vacation.He highlights questions left open by hunter v Moss Because, Moss declared himself trustee of 50 of his shares, an obvious problem arises because there is no certainty as to which 50 of th e 950 shares the trust relates. Thus, if Moss subsequently sells 50 shares how do the Revenue know whether he is selling his own shares, so that he is chargeable to capital gains tax, or if he is selling Hunters shares so that Hunter is so chargeable?If the proceeds of sale are profitably or detrimentally reinvested does the new investment belong in equity to Hunter or Moss, bearing in mind that it is only if Moss is acting wrongfully in respect of specific shares that Hunter can take benefit of the equitable tracing rules to apply whichever of them suits him best? Can Hunter develop an injunction to prevent Moss selling or mortgaging any shares or only more than 900 shares? Does Hunter really have any specific proprietorship interest capable of assignment?Despite these criticisms Jill Martin says that Hunter v Moss appears fair, tenable and workable also Allison Jones says the decision is a sensible one. She says it seems absurd that there could be a valid trust of the entire c ontents of a bank account which could then be traced wrongly into another account of the trustee but that there cannot be a valid trust of part of the funds in an account. But even Therese Villiers says that the flexibility provided by Hunter v. Moss may yet prove to have deleterious effectuate Hancock v Watson exception?