Burrough v Philcox [1840]

Key Notes

• Facts: The case involved a trust where the settlor intended for the trust property to be divided equally among beneficiaries.

• Issue: The court had to determine whether a trust could be validly created under the principle of equal division when the list of beneficiaries was not fully clear or certain.

• Outcome: The court held that in cases where the settlor’s intention is equal division among beneficiaries, list certainty is still required for the trust to be valid. Without a clear list, equal division would be impossible.

Impact & Analysis

• List Certainty in Equal Division: This case reinforced the rule that for a trust with equal division, a complete list of beneficiaries is required, as without it, it would not be possible to divide the property fairly.

• Reaffirming Traditional Approach: It showed that in cases where the settlor’s intention was explicitly to divide the trust property equally, the traditional "list certainty" rule still applied.

• Limited Application: The case applies mainly to situations where the settlor’s primary intention is equal division. In other discretionary trusts, the McPhail test would apply, and list certainty is not necessary.