Adnan’s intention of giving property to Amar is certain but the subject matter is not. We know 5 Horton Drive is mentioned, but Adnan later says he will provide a small house. This may suggest it is a different house or a house Adnan was looking to buy for his younger brother. Therefore this certainty has failed and there is no trust to receive a house. Amar was promised to be able to live at the house until he completes his studies. In Re Golay, the trustee was asked to allow the beneficiary ‘to enjoy one of my flats.’ Therefore the will is required to provide means of identification. If this cannot be found due to them being dead the courts do not have the power to intervene. If the trustees are able to make that choice, then certainty of subject matter is satisfied. He should be allowed this as he received an equitable interest because of squatting there but equity will not aid a volunteer.
Wills are only valid if they comply with the S9 of the Wills Act.
The first disposition is a fixed trust. The words ‘I leave’ are words of compulsion so intention is met. When dealing with shares it can be distinguished by Holland on the grounds that shares are a special case where one is good as another however it still does not meet the requirement of finding the correct amount of shares, as the word bulk is used. The courts will look for possible methods of sharing otherwise it would be up to the executor as opposed to the beneficiary. The terms ‘sister Sara’ defines the beneficiary but because this is a fixed trust it must be able to draw a list of the beneficiaries. This is possible; conceptually and by evidence. Formalities of shares are governed by S53(1)(c).In Re Fry, it was held that shares could only be properly constituted if there has been effective registration. Because he has been deceased, Sara will through the will be able to change the name of the shares to her own.
Again here the intention is met; ‘I leave’ is a word of compulsion. So is the subject matter, ‘silver classic Porsche’, it distinguishes it from all the other classic cars Adnan owns. Sheraz is the beneficiary. This is a fixed trust. In Blech, the court held the phrase ‘as shall survive me’ will be acceptable to apply as a beneficiary even though he is not born. In the same way the grandchild is also held acceptable. Sheraz is left as a trustee here. Personal property has no formalities involved. So Sheraz will be allowed to use and maintain the car for as long as Adnan’s first grandchild reaches the age of 16, where he can sign over the car to his own name. If the child is not the child of Sheraz, the car may be looked after by the Grandchild’s parents as soon as he/she is born.
The intention has been met once again, with regards to collection of books I would say it is also a certainty as, if the expression was only ‘rare books’ it would be difficult to quantify but being them a collection, they are most likely to be kept together in a safe place. This is a case of a power as peter is given authority to choose and distribute to which ever child he feels like ‘as he considers.’ As well as this this, it is a fiduciary power; he will have to consider periodically whether he wants to distribute the books. The test for conceptual certainty for a power trust is the ‘Given Postulant Test.’ From this is it possible to say of an individual that they will or will not fall into the description of beneficiaries. Adnan’s children can be identified (conceptually).
The fourth disposition gives the idea of there being a half secret trust. There must be an intention which can be discovered as he says ‘I give’, these are words of compulsion. Rule one of communication is that; ‘communication must be before the date of the execution of the will’. If the will states a time of communication then the trust must be communicated at that time. The time mentioned is ‘October 2010, this is sufficient. This rule also arises from Re Keen. ‘The intended trustee must accept the trust either expressly or by acquiescence.’ Because this was a conversation where Adnan was ensuring that Neil took the appropriate steps it can be assumed that he accepted to this but silence will still amount to acceptance. The sum or subject matter is clarified in the will, ‘£500,000’ so there is certainty of subject matter. With regards to the objectivity, it its clweary defined as it can be conceptually figured who Adnan’s children are and who his wife is, as well as this he makes sure of people who do not get the money.
In Pemsel, Lord Macmaghten identified four heads of charity. ‘S 2(2) the Charities Act 2006 provides a list of purposes which are considered to be charitable.’ S 2(2)(a) and (b) provides a detailed definition of relief of poverty and advancement of education. There are three tests that have to be met for it to qualify. The activity must be recognised by law as charitable Cancer Research is a Charitable Act. It must be for a recognised public benefit, this form of research will help the removal or find the cure of cancer which is well recognized and it is something that can affect the public at large. It must be exclusively charitable, this again is met because it is to treat camncer patients.
The above mentioned dispositions were all personal property therefore did not require formalities to be met.
The last disposition is a bare power; the words ‘in the hope’ are not even precatory, this is a mere wish not a condition or obligation given. Khalil does not even have to consider keeping the properties in the family, in the hope, removes loose conversation. This also removes the idea of it being a gift as there is more to just giving away the properties. Certainty of intention has been met as he says ‘I give’. The subject matter is the dental practices they can be identified via registration documents. The beneficiaries are Khalil and the ‘rest of the family’. Because this is a power, the Given Postulant test will be used. We can conceptually figure out who is part of the family as it would refer to the family of Adnan and his siblings or towards the grandchildren of Adnan’s mother. The properties are a form of land, S53 (b) of the LPA 1925 outlines that it must be stated in the will, this has been done. Hence the constitution is also satisfied.
In terms of capriciousness it does not exist. After all trusts have been made and the assets have been disposed the remaining will make part of the residue. In Charles, it was held it is possible to have an agreement which applies to part only of the residuary estate. Adnan’s wife will receive all the residuary estate; this will also include the failed trusts in the will. The trust may fall in to becoming implied trusts for example Amar, as a constructive trust or if the intended beneficiaries have provided valuable consideration, equity will compel the settlor to constitute the trust in their favour.
“A trust arises where ownership of property is transferred by a person to trustees to be managed or dealt with for the benefit of beneficiaries or a charitable purpose.” D J Hayton, Commentary and Cases on the Law of Trusts and Equitable Remedies, 11th Edition (check and complete reference). It must also be identifiable trust property, attached to the conscience of the trustee. It must be held for the benefit of the beneficiary; it must also have one or more beneficiaries and the trust will have no legal personality.
An express trust is one which is created by the holder of rights i.e. settlor. A declaration of trust is ‘expressed’, literally ‘pushed out’, in the same way that toothpaste is ‘expressed’ from the tube, by the settlor to a trustee who will henceforth hold some particular rights on trust the beneficiaries, or by transferring the rights to a third party to hold on trust for the beneficiaries. (Law of trusts, James Penner William Swadling, 2007, University of London External Programme)
Knight v Knight (1840) 3 BEAV 148
Re London Wine Co (Shippers) Ltd [1986] PCC 121
Paul v. Paul, [1986] 1 S.C.R. 306
Paul v Constance [1977] 1 WLR 527
Wright v Atkins (1823) Turn & R 143
As equity looks at form not intention
In Jones v Lock (1865) LR 1 Ch App 25, it was held that transferring property with the ‘intention to make a gift’ will not show the necessary trust intent.
Re Hamilton states all the words used to create a trust must be taken in to consideration
Palmer v Simmonds (1854) 2 Drew 221
Re London Wine Co. Shippers Ltd [1986] PCC 121 (HC)
In Re Goldcorp Exchange Ltd [1994] 2 ALL ER 806 the fact that specific property was not identified also proved fatal to the argument that property was being held on trust
Edwards, R. & Stockwell, N. (2009). Trusts and Equity. 9th edition. Pearson Longman. Page 90
Re Baden’s Deed Trusts, distinguished between conceptual and evidential certainty for a fixed trust. It identified that the test for conceptual certainty is the complete list test. IRC: stated that all the beneficiaries must be capable of being listed. Evidential certainty relates to the ability to prove that you fall within the description.
In Anthony v Donges (1998) 2 FLR 775 (HC): There was no trust, as the property was not clearly defined
The Law of Property Act 1925
The Law of Property Act 1925 ‘a declaration of trust concerning land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare the same or by his will.’
Richards v Delbridge LR 18 Eq 11
In Re London Wine, a claim for a trust failed as wine had not been separated from a larger stock of similar wine held at the warehouse on the grounds that it was not ascertainable.
Re Ellenborough [1903] 1 Ch 697 (CA)
Re Golay [1965] 2 All ER 660
Section 9 Wills Act 1987 No will shall be valid unless- a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and b) it appears that the testator intended to give his signature to give effect to the will; and c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and d) each witness either- i) attests and signs the will, or ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witnesses.)
In Re Adams and Kensington Vestry it stated there must be no ambiguity within the trust. That it must be completely clear.
In Re Goldcorp Exchange Ltd [1994] 2 All Er 806, gold was purchased and then carried in a container, this gold was just put anywhere and no specific allocation was mentioned. The trust failed on the grounds that the certainty of subject matter was not met. But from Holland v Newbury [1997] 2 BCLC 369, in which the view was taken that Re Goldcorp could actually be distinguied and said that shares are actually a special case.
Holland v Newbury [1997] 2 BCLC which
Milroy v Lord (1862) 4 De GF & J 264
Hunter v Moss [1994] 3 All ER 215, ‘since all the shares were identical, a declaration of a trust of 50 of them did not lack the necessary certainty. Edwards, R. & Stockwell, N. (2009). Trusts and Equity. 9th edition. Pearson Longman. Page 88
Re Knapton [1941] 2 All ER 573
Boyce v Boyce (1849) 16 Sim 476
In Grey v IRC [1959] 3 All ER 603, ‘the instructions were...of no effect because there was no writing.’
Blech v Blech [2002] W.T.L.R. 483
Re Weekes’s Settlement 1897 it was held that testator intended a mere power rather than imposing a trust
Thomas v Chief Education Officer and Another [1993] QB 747
Lord Wilberforce posed the question ‘can it be said with certainty that any given individual is or is not a member of the class?’
It discusses the existence of a trust but does not disclose the details
Moss v. Cooper (1861) Wood VC referred to: Acquiescence either by words of consent or silence
These being relief of poverty, advancement of education, advancement of religion and purposes beneficial to the community
Pearce, R. & Stevens, J. & Barr, W. (2010) The Law of Trusts and Equitable obligations. 5th edition. Oxford University Press. Page 581
In Re Shaw, it was held that ‘things which are normally associated with education both mental and physical…will ordinarily be recognised as valid objectives to be promoted through charity.’ A charitable trust must be for the benefit of the public or a section of the public.
McGovern v. Attorney-General (1981)
Re Snowden (1979) 3 All ER 172
Re Adams and the Kensington Vestry (1884) 27 Ch. D. 394
Charles v Fraser [2010] EWHC 2154(Ch)
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