More Noble

✍ Affidavit of Facts

{We}, the {woman} answering to the name “{Bride’s Name}” and the {man} answering to the name “{Groom’s Name}”, {are} over the age of consent, {are} of sound mind, {are} creations of the Lord God Almighty and followers of God’s laws first and foremost, and the laws of man when they are not in conflict.

{Name and Name} have first hand personal knowledge of the matters stated herein and hereby affirm:

Facts of the Event

1. {Name and Name’s} {100 plus} {wedding guests} physically delivered {cards with packaged and wrapped gifts} to you with the intent that the {name and name} receive the {cards and gifts} as entrusted to you.

Galatians 3:15

15. Brethren, I speak after the manner of men; Though it be but a man’s covenant, yet if it be confirmed, no man disannulleth, or addeth thereto.

2. {Name and Name} accepted your offer to hold the {gifts} on behalf of the {guests} for {them} to collect and open upon {their return from honeymoon}.

Leviticus 5:4

4. Or if a soul swear, pronouncing with his lips to do evil, or to do good, whatsoever it be that a man shall pronounce with an oath, and it be hid from him; when he knoweth of it, then he shall be guilty in one of these.

3. When {Name and Name} returned from {their ten (10) week honeymoon} you did not hand over the {packaged, wrapped and carded gifts} as presented to you by {their guests}.

1 Thessalonians 4:6

6. That no [man] go beyond and defraud his brother in [any] matter: because that the Lord [is] the avenger of all such, as we also have forewarned you and testified.

4. {Name and Name} saw no {cards}, no {wrapping}, no {packaging}; to wit, “no {cards}, no {gifts}”.

Leviticus 19:13

13. Thou shalt not defraud thy neighbour, neither rob him: the wages of him that is hired shall not abide with thee all night until the morning.

5. You would not discuss with {Name and Name} the whereabouts of the {cards}; the title of the {gifts} from {their guests}.

Matthew 18:15

15. Moreover if thy brother shall trespass against thee, go and tell him his fault between thee and him alone: if he shall hear thee, thou hast gained thy brother.

6. {Name and Name} have not received the {packaged, wrapped and carded gifts} as entrusted to you by {their guests}.

Proverbs 25:19

19. Confidence in an unfaithful man in time of trouble is like a broken tooth, and a foot out of joint.

7. None of the {guests} have indicated that you attempted to return the {cards and gifts}, that is their property.

Leviticus 6:2-3

2. If a soul sin, and commit a trespass against the LORD, and lie unto his neighbour in that which was delivered him to keep, or in fellowship, or in a thing taken away by violence, or hath deceived his neighbour;
3. Or have found that which was lost, and lieth concerning it, and sweareth falsely; in any of all these that a man doeth, sinning therein:

8. The {cards} express the {guests’} reasonable expectation that you ensure {Name and Name} receive and open the {gifts}.

Malachi 2:10

10. Have we not all one father? hath not one God created us? why do we deal treacherously every man against his brother, by profaning the covenant of our fathers?

9. The benefit of each {gift} is as a memorial of {Name and Name’s} unique {once in a lifetime} celebration.

Proverbs 17:8

8. A gift is as a precious stone in the eyes of him that hath it: whithersoever it turneth, it prospereth.

10. On {date} you confirmed that:
    • whilst {Name and Name} were away on {honeymoon} the {cards and gifts} were opened without the consent of the {guests}, {Name and Name’s} knowledge, or {their} consent, and
    • the whereabouts of the {cards and gifts} are unknown.

Matthew 12:37

37. For by thy words thou shalt be justified, and by thy words thou shalt be condemned.

Material Evidence of the Event

11. {Name and Name} have not seen or been presented with any evidence that proves the {carded, packaged and wrapped gifts} delivered to you by {their wedding guests} at {their wedding reception} were intended for others.
12. {Name and Name} have not seen or been presented with any evidence that proves you advised {them} of, and {they} consented to, the change in terms of {their} agreement for you to hold the {gifts} on behalf of {their guests} for {Name and Name} to collect and open upon return from {their honeymoon}.
13. {Name and Name} have not seen or been presented with any evidence that proves you are authorised by {their guests} to withhold {their gifts} from {them}.
14. {Name and Name} have not seen or been presented with any evidence that proves you handed the {cards, wrapping and packaging} to {them}.
15. {Name and Name} have not seen or been presented with any evidence that proves you are authorised by {their guests} or {them} to deny the transfer of title from {each guest} to {them}.
16. {Name and Name} have not seen or been presented with any evidence that proves you were authorised by {their guests} or {them} to administer property contrary to the {guests’} intent, to wit,:
    • to {read and discard mail} not addressed to you, and
    • to {open gifts} not wrapped for you.

17. {Name and Name} have not seen or been presented with any evidence that proves the {carded, wrapped and packaged gifts} have been returned to each {guest}.
18. {Name and Name} have not seen or been presented with any evidence that proves {their guests} changed their minds, to wit, the {carded, wrapped and packaged gifts} are for you.
19. {Name and Name} have not seen or been presented with any evidence that proves each {gift} is for you as a memorial of {their} unique {once in a lifetime} celebration.
20. On {26 September 2022} {Name and Name} received evidence, to wit, your word, that confirmed:
    • the {cards and gifts} were opened without the consent of the {guests}, {Name and Name’s} knowledge, or {their} consent, and
    • the whereabouts of the {cards and gifts} are unknown.

Facts of the Trusts

21. As {each of the guests}, the “settlors”, entrusted their property to you for {Name and Name’s} benefit they each created a “bare” trust in which you are joint “bare” trustees and {Name and Name} are joint beneficiaries.

Equity and Trusts in Australia (ETA) [16.05], [21.45]

22. A “bare” trustee’s duty is to hold the trust property and, on demand:
    • transfer the property to the recognised beneficiaries, or
    • where beneficiaries are not recognised, return the property to the settlors.

ETA [21.45], [17.95]

23. The three certainties of a trust exist for each trust:
    • Intent: {gifts} for {Name and Name}.
    • Subject: {gifts}.
    • Object: {Name and Name}.

ETA [17.05]

24. That is, certainty of:
    • Intent: exhibited by the transfer of the settlors’ property to you.
    • Subject: defined by property {packaged and wrapped with cards}, that is title, addressed to {Name and Name}.
    • Object: evidenced by {Name and Name’s} public celebration.

ETA [17.10], [17.60], [17.95]

25. When each settlor transferred their {gift} to you they did everything necessary to completely constitute the trust.

ETA [17.05], [18.95], [18.105]

26. When you accepted each {gift} to hold on the settlors’ behalf you accepted your trusteeship of each trust.

ETA [21.90]

27. You affirmed your trusteeship by your own word to {Name and Name} to safeguard the {packaged, wrapped and carded gifts} and hand them over to {them} upon request.

ETA [21.90]

28. Trustees are obligated to act in good faith and in the best interest of the trusts and beneficiaries:
    • Your first obligation, having accepted the {gifts} from the {guests}, is to safeguard the {packaged, wrapped and carded gifts} for delivery to {Name and Name}.
    • Your second obligation, based on your own word, is to continue to safeguard the {packaged, wrapped and carded gifts} and hand them over to {Name and Name} as agreed.

ETA [4.15], [4.80]

29. A trustee that commits to safeguarding and distributing trust property cannot release, that is disclaim, the obligations of the trusts.

ETA [16.185], [21.90]

30. A trustee is duty-bound to give effect to the settlors’ intentions, irrespective of how insignificant the terms may appear.

ETA [22.15]

31. Each individual trustee has a separate responsibility to ensure that the terms of the trusts are carried out.

ETA [22.45]

32. A trustee whose action is contrary to the settlors’ intent commits a breach of trust.

ETA [22.15], [24.05]

33. Trustees are liable for each breach of trust.

ETA [24.05]

34. Trustees are liable for the restoration of trust property to the original condition before the breach.

ETA [16.120], [24.30]

35. Each trustee has an obligation to close each trust as directed by the beneficiaries.

ETA [21.45], [25.120]

36. Each trust stands and remains exercisable despite the lapse of time and the failure of trustees to act.

ETA [16.185]

Material Evidence of the Trusts

37. {Name and Name} have not seen or been presented with any evidence that proves “bare” trusts were not created when each of {their guests}, the “settlors”, entrusted their property, {carded, wrapped and packaged gifts}, to you for {their} benefit.
38. {Name and Name} have not seen or been presented with any evidence that proves your duty as “bare” trustees includes anything other than to hold the trust property, and on demand:
    • transfer the property to {them}, the recognised beneficiaries, or
    • return the property to the settlors.

39. {Name and Name} have not seen or been presented with any evidence that proves the trusts failed to take effect when the three certainties of the trusts were fulfilled.
40. That is, certainty of:
    • Intent: exhibited by the transfer of the {guests’} property to you;
    • Subject: defined by property {packaged and wrapped with cards}, that is title, addressed to {Name and Name};
    • Object: {Name and Name}, evidenced by {their} public {wedding} celebration.

41. {Name and Name} have not seen or been presented with any evidence that proves each settlor failed to completely constitute the trusts when they transferred each {gift} to you to hold on {Name and Name’s} behalf.
42. {Name and Name} have not seen or been presented with any evidence that proves you rejected trusteeship when you took delivery of each settlors’ {gift}.
43. {Name and Name} have not seen or been presented with any evidence that proves you advised {them} of, and {they} consented to, the revocation of your word affirming your trusteeship.
44. {Name and Name} have not seen or been presented with any evidence that proves direction was given by the settlors for you to administer trust property contrary to their intent.
45. {Name and Name} have not seen or been presented with any evidence that proves you, after giving your word to safeguard and distribute the trust property, are able to release, that is disclaim, the obligations of the trusts.
46. {Name and Name} have not seen or been presented with any evidence that absolves you of your obligation to give effect to the settlors’ intention, irrespective of how insignificant the terms may appear.
47. {Name and Name} have not seen or been presented with any evidence that proves the individual responsibility of each trustee, to ensure that the terms of the trusts are carried out, has ever been nullified.
48. {Name and Name} have not seen or been presented with any evidence that proves a breach of trust excludes an act of a trustee contrary to the settlors’ intent.
49. {Name and Name} have not seen or been presented with any evidence that your liability as trustees for each breach of trust was abrogated.
50. {Name and Name} have not seen or been presented with any evidence that absolves you of your obligation to restore the trust property to the condition as when entrusted to you, that is the original {packaged, wrapped and carded gifts}.
51. {Name and Name} have not seen or been presented with any evidence that proves you as “bare” trustees are excused from your duty to close each trust as directed by the beneficiaries.
52. {Name and Name} have not seen or been presented with any evidence that proves the lapse of time and failure of you as trustees to act causes each trust to cease.

Restore

53. As the {guests} have not altered their intent and the trusts remain open, you are duty-bound to fulfill their reasonable expectation that {Name and Name} receive the {packaged, wrapped and carded gifts} as entrusted to you.
54. As you have established that transfer of title is not possible, your obligation is to close the trusts by lawful restoration. That is, restore sevenfold of the value of the {guests’} {packaged, wrapped and carded gifts} in lieu of the originals.

Proverbs 6:30-31

30. Men do not despise a thief, if he steal to satisfy his soul when he is hungry;
31. But if he be found, he shall restore sevenfold; he shall give all the substance of his house.

Calculation

As you have not transferred title to {Name and Name} {they} have no record of what was given by whom, and the value is unknown by {them}; therefore ascribe a reasonable value of {$100} multiplied by {100 guests} multiplied by 7 adjusted for inflation.

Annexures

• Annexed and marked with the letter A (pages {1-8}) is Definition of Terms, Ref: {reference}, {date}.

• Annexed and marked with the letter B (page {9}) is Invoice, Ref: {reference}, {date}.

• Annexed and marked with the letter C (page {10}) is Schedule of Fees, Ref: {reference}, {date}.

• Annexed and marked with the letter D (pages {11-15}) is quoted extracts from Equity and Trusts in Australia, G E Dal Pont, SEVENTH EDITION.

Affirmation

{We}, {Bride’s name} and {Groom’s name}, do solemnly and sincerely affirm and declare that all herein be true.

Jurat

Signed and solemnly and sincerely affirmed and declared by {Bride’s names} and {Groom’s names}

Annexure A

Ref: {reference}

This is the document referred to as Annexure A in the affidavit of {insert name and name’s names},

Definition of Terms

Ref: {reference}

abrogated; abolished, did away with, or annulled, especially by authority.

absolves; relieves of a requirement or obligation.

accepted; agreed to.

administer property without right; to manage property contrary to the expressed intent of the settlors.

affirm; to make firm; establish, confirm.

agent; any person or individual acting on your behalf.

agreement; a mutual assent to do or refrain from doing something; a contract.

annexed; joined at the end.

annexure; a separate part of a legal agreement, report, etc. that gives extra information.

announcement; something that someone says officially, giving information about something.

annulled; cancelled officially; made of no effect.

aright; without mistake or crime.

ascertain; to establish with certainty.

ascertained; established with certainty.

ascribe; to assign or attribute.

assent; the act of the mind in admitting, or agreeing to, the truth of a proposition.

beneficiary, beneficiaries; the principal; a person designated as a recipient of property under a trust.

benefit; anything that is for the good or advantage of a person or thing.

breach of fiduciary duty; exists where the trustees are found to have breached trust by putting their interests over and above the interests of the beneficiaries.

breach of trust; the trustees fail to discharge their duties reasonably, in good faith and according to the settlors’ intent; to administer property without right.

cease; to come to an end; to collapse or close a trust.

charges; expenses or costs.

child; a man or woman under the age of twenty with no knowledge between good and evil.

chose in action; the legal entitlement to enforce a promise made pursuant to a contract to benefit a third party.

consent; a yielding of the mind or will to that which is proposed or stated by another; permission.

contention; to make or gain by force.

contract; an agreement between two or more parties creating obligations that are enforceable or otherwise lawfully and or legally recognisable.

contrary; opposite; moving against or in an opposite direction.

default; an omission of that which ought to be done, and more specifically, the omission or failure to perform a duty.

defined; determined with precision; ascertained or exhibited clearly.

definition; an explanation of the signification of a word or term.

direction; an authoritative order, command or instruction.

disclaim; to say that you have no responsibility for, or knowledge of, something that has happened or been done.

discretion; liberty or power of acting without other control than ones own judgement.

dishonour; to disgrace; to bring reproach or shame on.

dispute; an unexpected event, different view or disagreement stops you from being yourself or harms your relationships.

disregard; to have no care or respect.

duty; that which a person is bound, by any natural, moral or lawful obligation, to pay, do or perform.

errors and omissions accepted; although every effort has been made to ensure the accuracy of the information, no legal responsibility is accepted for any errors or omissions herein, whether such errors or omissions result from negligence, accident or any other cause, and no responsibility is accepted with regard to the standing of anyone mentioned.

establish; to set and fix firmly or unalterably; to settle permanently.

equity; freedom from bias or favouritism and dealing fairly and equally with all concerned; having no respect of persons.

evidence; some thing, including testimony, documents and tangible objects, that proves or disproves the existence of an alleged fact.

evidenced; shown to be true.

excludes; prevents from being included, considered, or accepted.

excuse; to free, as from an obligation or duty; to make allowance for; overlook or forgive.

exhibited; shown publicly.

expectation; the act of expecting or looking forward to a future event with at least some reason to believe the event will happen.

extinguished; ended.

faith; the substance of things hoped for, the evidence of things not seen;

fees; a reward or compensation for services.

fiduciary; one who holds a thing in trust; a trustee.

fiduciary duty; exists where one person, the fiduciary, undertakes to act for another, the principal, and in doing so, must place the interests of the principal above their own.

gift; something that is bestowed voluntarily and without compensation.

God; our Creator, Father and Master;

God’s law; see law.

harm; mischief; wickedness.

honourable; directed to a just and proper end; honest, fair, and worthy of respect.

individual; a man, woman or child.

in good faith; in an honest, sincere and proper way.

in lieu; in place of; instead.

intent; the mental objective behind an action. A person has intent with respect to:

1. conduct if he or she means to engage in that conduct;
2. a circumstance if he or she believes that it exists or will exist;
3. a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

invalidated; declared invalid.

jointly and severally; each named party has the duty of fully performing the obligations set forth herein and that we have the right to collect the entire balance owed.

judge; to form an opinion or estimation of after careful consideration.

law; the Word of God being the doctrines and precepts of God, and his revealed will as set out in The Holy Bible; the natural law of the land.

lawful; according to God’s law.

laws of nature; see natural law of the land.

liable; obliged in law or equity.

liberty; the power of acting as one thinks fit, without any restraint or control, except by the laws of nature.

living; not dead.

malice; a disposition to injure others without cause, from mere personal gratification or from a spirit of revenge.

man; a living soul made in the image of God.

material fact; a fact that is important, significant or essential to the issue or matter at hand.

merriment; mirth.

must; to be obliged.

natural law of the land; a rule of conduct arising out of the natural relations of man established by God, and existing prior to any positive precept. Thus it is a natural law of the land, that one man should not injure another, and theft and fraud are crimes, independent of any prohibition from a supreme power.

no liability; we have acted in good faith and neither of us are liable to anyone mentioned herein for any damage, loss or prejudice suffered or claimed due to:

1. the noted statements of fact;
2. the restore;
3. the execution and filing of documents mentioned herein, whether or not the facts therein are correct.

note; to observe carefully or with particularity.

noted; set down in writing.

notice; a written or printed announcement.

nullified; made void; rendered invalid; deprived of legal force or efficacy.

obligation; a moral duty that renders a person liable to provide restore for neglecting it.

obliged; bound in duty or in law.

office found; whomsoever receives this notice is responsible to ensure all addressed parties receive the document.

party; a person.

person; includes a body politic or corporate as well as an individual.

personal; belonging to an individual and private in actions or character.

principal; chief; highest in rank or importance; a beneficiary.

private; belonging to or concerning an individual only.

proper; that which is fit, suitable, adapted, and correct.

property; any thing that is owned by a person or entity, whether real or personal, tangible or intangible, legal or equitable.

proof; the establishment or refutation of an alleged fact by evidence.

prove; to provide evidence.

reason; the capacity for logical, rational, and analytic thought; intelligence.

reasonable; to take steps to ascertain whether an action is authorised prior to performing the action.

rectify; restore.

redress; to set aright.

restore; to redress a trespass.

responsibility; a duty, obligation, or burden.

restore; to return to a person, that which was delivered you to keep and unjustly detained; to make restitution or satisfaction for a thing taken, by returning something else, or something of different value.

restoration; the act of replacing in a former state.

revoked; invalidated or caused to no longer be in effect, as by voiding or cancelling.

right, rights; liberty.

safeguard; to prevent loss, theft, destruction, or damage.

set at naught; to disregard or scorn; to treat as unworthy of respect or consideration.

settlor; the person who transfers any property or business to a trustee in trust for the use of another.

sincerely; honestly; without simulation or disguise.

soul; the spiritual, rational and immortal substance in man, which distinguishes him from the visible creation.

stipulation; agreement; contract.

successors, nominees and assigns; the terms agreed herein are binding even when you die or assign your obligation to another, then your estate, heirs and successors, or the person who thus receives your obligation, are bound by your agreement.

theft; a criminal act that deprives a person of his property held in trust without his consent.

The Holy Bible; The Holy Bible, Authorized King James Version.

to wit; that is to say; namely; specifically.

transfer of title; change of ownership of property; A trustee takes legal title of the trust property but the trustee does not have the right to receive any benefits from the property, the right to benefit from the property, known as equitable title, belongs to the beneficiary.

trespass; an unlawful act committed against the person or property of another.

trust; a relationship created at the direction of an individual, in which one or more persons hold the individual’s property subject to certain duties to use and or protect it for the benefit of others.

trust property; property; a limited interest in property; a chose in action.

trustee; the person to whom any property or business is transferred in trust for the benefit of another.

vexation; afflictive; teasing.

voided; annulled; invalidated.

will; the different operations of the mind, soul, or intellectual part of man. In other words, we reason with respect to the value or importance of things; we then judge which is to be preferred; and we will to take the most valuable.

without prejudice; specific to dispute resolution: stated at the start of a letter or conversation makes the contents inadmissible in any future court proceedings; the communication cannot then be compelled to be produced in evidence or referred to in proceedings; parties can speak openly about the matters in dispute without the risk of the other party using that information against them later in court.

woman; a living soul made in the image of God.

END DEFINITION OF TERMS

Annexure B

Ref: {reference}

This is the document referred to as Annexure B in the affidavit of {name and name’s names},

Invoice {INV0001}

{name and name’s names} {(they, them, their) or (we, us, our) or (I, me, my)}
{email address}

{name of first debtor} (you, your)
By email to: {their email address}

{name of second debtor} (you, your)
By email to: {their email address}

Invoice

Terms and Conditions

1. The inflation adjusted “Proverbs 6:30-31 Restoration” value shall be recalculated for every day the restoration remains unfulfilled beyond {due date}.
2. There is no limitation of time to collect any and all such amounts owing. We reserve the right to take lawful and or legal action should the debt remain unpaid with the stipulation that you, the debtors, are liable for all our costs associated with recovering the debt.
3. No liability. Errors and omissions accepted.

END INVOICE

Annexure C

Ref: reference

This is the document referred to as Annexure C in the affidavit of Name and Name’s names,

Invoice Calculations

Ref: {reference}

Principal + Interest = {000,000.00}

Time in Years Calculation

1. Calculate the number of days between the trespass and today, end date not included.
   {dd Mmm YYYY} to {dd Mmm YYYY} = {13,839} days
2. Convert days to time in years
   {13,839} ÷ 365.25 = {37.88911704312115}

Inflation Calculation

3. Calculate the inflation rate
   {$10,000} in {YYYY} is worth {$34,266.30} in {YYYY}
   {3.29%} per year average inflation rate

Compound Interest Calculation

4. Calculate the compound interest
   Total: P + I = [A] where A = Pe^rt

END INVOICE CALCULATIONS

Annexure D

Ref: {reference}

This is the document referred to as Annexure D in the affidavit of {name and name’s names},

Schedule of Fees

Ref: {reference}

Terms and Conditions

1. All fees and charges are independent and cumulative and stated in {Australian Dollars}.
2. There is no limitation of time to collect any and all such fees.
3. As per equity, {we} reserve the option to prescribe the method of payment as specified on the invoice. All fees are to be settled in full within {twenty-one (21)} days of the date of the invoice unless noted otherwise on the invoice.
4. {We} reserve the right to adjust and change this Schedule of Fees and Charges at {our} discretion.
5. {We} reserve the right to take legal action should the debt remain unpaid with the stipulation that you are liable for all {our} costs associated with recovering your debt.

END SCHEDULE OF FEES

Annexure E

Ref: {reference}

This is the document referred to as Annexure E in the affidavit of {name and name’s names},

Equity and Trusts in Australia

Ref: {reference}

[4.15]

Proscriptive nature of fiduciary duties

“The fiduciary standard is encapsulated in two principal duties: the “no conflict” and the “no profit” duties.¹⁰ The former prohibits a fiduciary, except with the informed consent of the principal, from placing herself or himself in a position involving a real and sensible possibility of a conflict between the duty as a fiduciary and her or his own interest¹¹ (a “duty-interest conflict”), or between the duty as a fiduciary to two or more persons (a “duty–duty conflict”). The “no-profit” duty prohibits a fiduciary from making a profit or benefit, or exploiting an opportunity arising, out of a fiduciary position except with the principal’s informed consent. The duties in question can, and not infrequently will, intersect; for instance, a breach of the “no profit” duty may reflect a yielding to a conflict.¹² A contravention of either duty, in any case, speaks of disloyalty.”

[4.80]

TRUSTEE AND BENEFICIARY

“Beyond the duties imposed upon trustees in equity directed at ensuring the trustee acts in the beneficiaries’ best interests, fiduciary duties are necessary to give effect to the express or implied undertaking of a trustee to give undivided loyalty to those interests: ….”

[16.05]

Nature of A Trust, DEFINITION AND CHARACTERISTICS

“A trust has been described as existing “when the owner of a legal or equitable interest in property is bound by an obligation, recognised by and enforced in equity, to hold that interest for the benefit of others, or for some object or purpose permitted by law”.¹ It follows that the essence of a trust is the holding of property by its legal owner (the “trustee”) for the benefit of others (the “beneficiaries”).”

[16.120]

Distinguishing contract from trust

“A trustee must restore the trust to the position it would have stood had the breach of trust not occurred, a liability unconstrained by common law notions of causation or remoteness: ….”

[16.185]

Trusts and powers, Distinctions

“In the case of a trust, the trustee must act; a trust is imperative.”
“Fourthly, trusts remain exercisable despite lapse of time.¹⁴⁵”
“On the other hand, a trustee, once having undertaken to act in the trust, cannot release (disclaim) the obligations of the trust, but can only retire from the trust according to its terms or the provisions of the trustee legislation: ….”
“On the other hand, if a trustee fails to act the trust does not fail;”

[17.05]

The Requisite Certainties

“However created, an express trust must fulfil the “three certainties” of intention, subject matter and object,²”

[17.10]

CERTAINTY OF INTENTION

“Fundamental to the creation of an express trust is that the alleged settlor³ exhibit an intention to create a trust.”

[17.60]

CERTAINTY OF SUBJECT MATTER

“The property of a trust must be defined and identifiable.”

[17.95]

CERTAINTY OF OBJECT, “Beneficiary principle”

“The “beneficiary principle” requires that a trust be in favour of definite beneficiaries, ascertained or capable of ascertainment,...” “A trust that does not fulfil certainty of object fails to take effect, and the intended trustee holds the property in question on resulting trust for the settlor (or the settlor’s estate): ….”

[18.95]

First element: everything must be done

“In other words, the meaning to be ascribed to Turner LJ’s principle of “everything to be done” is everything that has to be done by the transferor rather than the completion of every single step in the transfer.”

[18.105]

Second element: what must be done according to the nature of different property

“Thirdly, regarding chattels capable of passing by delivery, a transfer is effective where the intending settlor delivers the chattels to the intended trustee or executes and delivers a deed of gift of the chattels.¹¹⁷”

[21.45]

Bare trustees

“A “bare” trustee holds property in trust for the absolute benefit and at the absolute disposal of beneficiaries of full age and capacity in respect of that property, but has no interest in that property other than by reason of legal title as trustee, and no (further) duty to perform except to convey the property on demand to the beneficiaries or as directed by them.⁴⁵”

[21.90]

DISCLAIMER BY TRUSTEE

“A person appointed as a trustee may disclaim the trust office, whether because the appointment is made without her or his consent or in light of changed circumstances, before doing any act in performing the trust that could be interpreted as its acceptance.¹¹⁴”

[22.15]

Fundamental duty to obey the terms of the trust

“A trustee’s plainest and overriding duty is to obey the terms of the trust. This is because a trustee is duty-bound to give effect to the settlor’s intention as expressed in the trust instrument, irrespective of how seemingly insignificant its terms may appear. The duty of obedience qualifies virtually every other duty of a trustee.”

[22.45]

Duty not to delegate and its exceptions

“Pursuant to the non-delegation duty, “each individual trustee has a separate responsibility to ensure that the terms of trust are carried out”.³² The law does not, in the main, countenance a “passive” trustee who simply delegates responsibilities to the “active” trustee.³³” “The delegation permitted in the territories, New South Wales, Tasmania and Victoria is limited to where a trustee is out of State, or is about to depart from it.”

[24.05]

Breach of Trust

“A breach of trust has been described as “nothing more nor less than an act by the trustee in contravention of the duties imposed on him by the trust or in excess of his powers”.¹”

“Importantly, liability for a trustee’s breach of trust is strict;³ it is not premised on proof of any bad faith or dishonesty,⁴ and may not be precluded simply because the trustee acted in accordance with skilled professional advice.⁵”

[24.30]

Compensation

“Where a breach of trust causes loss to the trust estate, the trustee is liable to restore the trust estate to the position it would have been in absent the breach.³⁴”

[25.120]

TERMINATION OF TRUST

“The termination of a trust may be achieved through one of the following methods:

• under a power of revocation reserved in the trust instrument: …;
• by the consent of all beneficiaries: …; or
• by way of distribution of the trust property to the beneficiaries: ….”

END EQUITY AND TRUSTS IN AUSTRALIA

END AFFIDAVIT

References

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