Will and trust deed problem question (2000 words)

Will and trust deed job inquiry ( 2000 words )

This scenario concerns a twosome, Victoria and David, who seek to do a figure of testamentary gifts in David’s will, and a figure of testamentary temperaments through a trust set up by Victoria. David’s will and Victoria’s trust title will each be considered, and the single temperaments will be analysed in order to measure whether they will win under the jurisprudence of trusts, and what the place of each of the donees will be.

The executors of David’s will are Michael and Jerry, and will hold a figure of issues to see. Each of these issues will be considered in bend. It should foremost be mentioned that there is a differentiation between a will and a trust title. A will is a agency by which the testate ( David in this instance ) can dispose of his belongings in expectancy of his decease at some future clip. The commissariats of the will come into consequence on the decease of the testate, and it is the duty of the executors of the will to dispose of the deceased’s estate ( that is, the entireness of the deceased’s belongings less debts at the clip of decease ) as envisaged by the will of that deceased. Trusts which are envisaged in volitions are known as testamentary trusts, and temperaments made therein are known as testamentary gifts. This, so, can be contrasted with trusts set up in the life-time of the trustor, which are known asinter vivostrusts. The trusts that Victoria seeks to set up are illustrations of inter vivos trusts.

The first proviso in David’s will is that his Yorkshire place go to Ruby and Paul. Ruby and Paul are two of David and Victoria’s three kids. A cardinal facet of trust jurisprudence is the alleged “three certainties” following the seminal instance ofKnight V Knight( 1840 ) . These relate to the certainty and lucidity with which the trust in inquiry has been set up. The three certainties provide a benchmark which must be reached in order for any trust or will to be valid, as the benchmark is considered to demo what the trustor or testator’s existent purposes were. The three certainties which must be sufficient are certainty of purpose ( that is, whether it was the purpose of the individual puting up the trust really to make so ) ; certainty of capable affair ( that is, what was the intended belongings over which the trust was to be established ) ; and certainty of object ( that is, who the intended donees are ) . In this first proviso of David’s will, so, it is ill-defined which of his two Yorkshire places David intends to do a gift of, although it is clear that he intends the receivers of this gift to be Ruby and Paul. A farther potency job is the fact that David does non stipulate the portion of the belongings that each of the donees is to take. Following such instances asPaul V Bodensee( 1977 ) , it is possible that such a loose declaration of trust over the house would do, and the tribunal would most likely presume an purpose that Ruby and Paul take the house in equal portions ( as happened inPaul V Bodensee, although the capable affair of the trust was money in a bank history ) .

The 2nd proviso provinces that all of David’s portions in Manchester United will travel to his godson Peter. This is elementary, as the three certainties are all met. It is clear that David intends to do a gift of the portions, and the existent figure of the portions is clear as he is doing a gift of “all” of them. The object of the testamentary gift is David’s godson Peter. If David has merely one godson who is named Peter, and Peter can be located, there will be no job. There is no conceptual or evidentiary uncertainness about this gift, but there may be “whereabouts” uncertainness which relates to turn uping Peter. InBrown V Gould( 1972 ) , Megarry VC stated that this was, in fact, no job at all, as no trust will be held to neglect because of uncertainness as to the location of the donee. If Peter has non been located, Michael and Jerry will keep as legal guardians the portions for Peter until such clip as he is found. This applies to any uncertainness as to the whereabouts of any intended donee, or so any intended trust belongings.

David’s gift of ?100,000 to the hapless kids of Manchester will potentially neglect for uncertainness, as the definition of “poor children” is debatable. What is the benchmark? Making a trust for a category of individuals is non in itself a job. the demand, nevertheless, is that every member of the category of individuals is identified with certainty. In this instance, it seems highly improbable that so vague a definition of category will be sufficient, and this gift will most likely fail. The ?100,000, so, will return to David’s estate and form portion of the residue. David’s gift of his portion of “Becks Design Company” to his female parent experiences no such job of uncertainness, and will win as a gift.

The proviso that ?1,000,000 goes to Victoria “to dispose of as she sees tantrum for the benefit of the family” is an illustration of precatory words, evidenced in such instances asMussoorie Bank Ltd v Raynor( 1882 ) . These are words of petition in a will. In the 19th century, instances such asPalmer V Simmonds( 1854 ) andLambe V Eames( 1871 ) established that precatory words such as this were sufficient to make a trust duty. In other words, this proviso will most probably be held to intend that the capable affair of ?1,000,000 will be held by Victoria on trust for the four kids.

The testamentary gift to Peaches and Ruby of “the majority of my antique aggregation of silver” will about surely fail for uncertainness as to what constitutes the “bulk” of the aggregation. This is an illustration of conceptual uncertainness, as the construct of the “bulk” of the aggregation is excessively obscure. This intended gift will neglect. A similar job befalls the proviso that 500 of David’s portions in Potter Publications be divided between “the children” every bit. Although, following the instance ofIRC V McMullen( 1981 ) , tribunals will seek non to annul trusts where sensible building can be made, it seems the designation of the donees as “the children” might merely be excessively obscure. It could intend his ain kids, or the hapless kids of Manchester, or some other group of kids.

The gift of all the money in David’s bank history to Victoria for her life disbursals and later upon trust for David’s kids and grandchildren would, as above, be sufficient to make a trust duty. This is an illustration of a “whatever is left” trust, followingSprange v Barnard( 1789 ) . Such trusts have often been found to neglect for uncertainness, because the balance of the belongings would be impossible to be executed. Victoria would likely be held to be entitled perfectly to the money. The proviso that the residue of David’s estate go to his kids in equal portions is a common residuary clause, and is elementary.

We come to the trust title executed by Victoria. Under this, she makes a gift of “all my concern interests” to her kids. As above, it is to be presumed she intended the kids to take equal good portions of these involvements, and a tribunal would probably interpret her purpose as such. What constitutes her concern involvements is the following inquiry. It surely includes her portion of the belongings development company, which might be held to be 50 % , or may change depending on Victoria’s and David’s several input into the concern. After the decease of Victoria’s male parent, she will inherit his concern Real Media. This means that it excessively will organize portion of her concern involvements, and will besides be held on trust for her kids. This is a instance of “future property” , and reflects equity’s willingness to hone imperfect minutess. Victoria can non make a trust over belongings she does non yet ain. If consideration is provided for the assignment, nevertheless, equity will let this to happen. The same applies to Ripley Towers which Victoria is due to inherit from her male parent. The demand that Ruby and Peaches keep the belongings in the household presents an uncertainness as to Victoria’s purpose. Did she mean to give the belongings perfectly to the misss, or did she mean to give it capable to a kind of restrictive charge, or did she really intend to make a trust over the belongings?

The following proviso in the trust title is that Victoria’s collectors’ 1914 autos travel to her boies. This is a gift of capable affair that can be ascertained with certainty. The group of 1914 autos should be elementary in placing. As above, there is a step of uncertainness as to which of these autos each of her two male childs will take. Again, it will most probably be construed that her “boys” means her two boies ( one time Andre is born ) and that Victoria intended that each of these take 50 % of the autos. The built-in trouble in spliting belongings such as a aggregation of autos into equal portions will be a minor job, but non one that would get the better of this gift.

Victoria’s trust title so provides that her gold jewelry go to Peaches. There is a grade of uncertainness as to whether it is, in fact, her girl Peaches, or another individual besides called Peaches. This will be a affair of building for the tribunal, and it seems improbable that it would be held to get the better of the gift. Finally, Victoria provides in her trust title that her Turner aggregation will travel to her sister Jane, who will be entitled to one of the pictures, and who will so keep the remainder on trust for “the kids and nieces” . There are a figure of jobs with this. In itself, the proviso would be found sufficient to make a trust duty on Jane ( as above ) . There is possibly little uncertainness as to the category of donees, but a tribunal would likely happen the category to be easy identifiable as “the kids and nieces” are a closed group. The chief job, nevertheless, is that Jane dies, so evidently can non take her belongings or place as legal guardian. the pictures will return to Victoria’s estate. It is an established just rule, nevertheless, that a trust will non neglect for privation of a legal guardian. The trust over the Turner aggregation will stand, so, supplying the tribunal can happen another individual willing to move as legal guardian. Failing this, and as a last resort, the tribunal will name a legal guardian. The kids and nieces, so, will profit from this proviso.

As has been demonstrated, in trust jurisprudence, one of the most of import constructs is that of certainty. While tribunals are more inclined to see trusts win, and will ease this where possible, no tribunal is prepared to move in possible dispute of the settlor’s purposes. That is why certain commissariats will neglect where it is non sufficiently clear what was intended.



Brown V Gould [ 1972 ] Ch 53

IRC V McMullen [ 1981 ] AC 1

Knight V Knight ( 1840 ) 3 Beav 148

Lambe V Eames ( 1871 ) 6 Ch App 597

Mussoorie Bank Ltd v Raynor ( 1882 ) 7 App Cas 321

Palmer V Simmonds ( 1854 ) 2 Drew 221

Paul V Constance ( 1977 ) 1 WLR 527

Sprange v Barnard ( 1789 ) 2 Bro CC 585

Secondary beginnings

Hopkins, J. ( 1971 ) ‘Certain Uncertainties of Trusts and Powers’ ,29 CLJ 68

Martin, J.E. ( 2001 )Hanbury and Martin: Modern Equity( London, Sweet & A ; Maxwell )

Pearce, R.A. and Stevens, J. ( 2006 )The Law of Trusts and Equitable Duties( Oxford: OUP )

Penner, J.E. ( 2004 )The Law of Trusts( London: LexisNexis )

Watt, G. ( 2006 )Trusts Textbook, 2neodymiumEdition ( Oxford, OUP )