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General Principle:

If the attempt to make a gift fails, the court will not rescue the gift.


Jones v Lock (1865) 1 Ch App 25


Mr Jones had children with a first wife and one son nine months old with the second wife. He came back from a business trip and put a cheque into the hand of his son of nine months saying ‘I give this to baby for himself and put the check into the safe’. Mr Jones also got in touch with his solicitor saying ‘I shall come to your office on Monday to alter my will, that I may take care of my son’. On the same day he died. The issue was whether Mr Jones intended to make a declaration that he held the cheque in trust for the child.


Lord Cranworth, L. C. said ‘I regret to say that I cannot bring myself to think that, either on principle or on authority, there has been any gift or any valid declaration of trust. The cheque was in the man’s name he had made no efforts to endorse the cheque over to his son or to a trustee for the baby’. Important transactions of this kind have to be carefully judged since the effect of declaration of trust may be very significant. The father had the intention to give something to the child but the facts had to be looked at in an objective way.


The father did intent to give something but he did not intent to enable the child to bring an action of trover for the cheque. The father simply meant to say that he could make a provision for the boy.

Jones v Lock


It is debatable whether it is necessary to use the word "trust" while constructing one. A court's effort to show the settlor's purpose is a relatively simple task if a document must be read, regardless of whether it is a trust deed or a will. After then, it becomes much more difficult when a document does not vouch for a trust. The court in Paul v. Constance [1977] 1 WLR 527 made this argument. Ms. Paul was advised by Mr. Constance that they shared ownership of the funds in his account. The monies in the account were used by the two to make joint purchases and to deposit their bingo winnings. Regardless of his intentions, Mr. Constance had never created a will or divorced, and as a result, his wife was legally entitled to the money in his account upon his passing under the Administration of Estates Act 1925. Ms. Paul claimed ownership of the funds in the account because she thought it belonged to her. The Court of Appeal determined that Mr. Constance and Ms. Paul were "simple people," and that their lack of formality should have been taken into account.

How can we contrast the case of Paul v. Constance [1977] 1 WLR 527 in light of Jones v Lock. In the cases of Paul v. Constance and Jones v. Lock both utilised generic phrases, which suggests that the purposes of both cases were not adequately apparent. This similarity in vocabulary raises concerns. The phrases used in Paul v. Constance were mutually agreed upon, reiterated several times, and independently checked by the bank manager. In contrast, there are substantial differences between the two cases. In this case, their deeds were more important than their words. By claiming that the differences between Paul v. Constance and Jones v. Lock simply represent a change in the courts' perspective through time, Gardner argues another layer to this hypothetical situation of the creation of a trust.

Paul v Constance

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