Explain to Aberlard of how he may best achieve the following bequests after his death.

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Explain to Aberlard of how he may best achieve the following bequests after his death.

“Aberlard, a rather eccentric character, wishes to make the following dispositions after his death. Explain to him how he can best achieve these objectives, and what problems he may encounter in trying to do so.”

Since “we brought nothing into the world, and we can take nothing out of it” An individual can execute a will indicating how to dispose of his property on his death.  Such a will is required to comply with the formalities in s9 of the Wills Act 1837 as amended by s17 of the Administration of Justice Act 1982.


Abelard’s situation is one many faced when they wish to pass on property in their ownership to their family after death. To deal with situations like this, there is a section under Property Law which is capable of dealing with most requests of people; the Law of Trusts. To begin with I will write a broad definition of what a trust constitutes: “A trust is a situation where one person called a ‘settlor’ (or testator) transfers property to another (trustee) is legally obliged to look after or manage the property for third parties (benificiaries).

Referring to the above definition of Trust just offered, many terms of the definition offered are abstract or not matters of ordinary usage. Alternatively there are two ways in which a trust can arise, either by way of conscious creation of these obligations or because of some other legally significant matters are present. Effectively there are two main branches of trusts, ‘Inter Vivos’ trust and a ‘Testamentary’ trust. An Inter Vivos trust is one where the settlor creates a trust during one’s lifetime and also occurs during the settlor’s lifetime, whereas a Testamentary trust is initiated upon the death of the testator. The best available option to Aberlard would be to create a testamentary trust as he only wishes to distribute his property after his death.  

The first bequest made by Aberlard the settlor is that he wishes his antique furniture to be given to those of his children living at his death, provided that they are still practicing the Christian religion. One of the first problems Aberlard may encounter in executing this part of the trust is that he must define as to what he considers to be a practicing Christian and secondly Aberlard would need to inscribe a description of antique furniture which may also need to be auctioneered to see if it holds any value as an antique. As previously mentioned a trust can arise either by conscious creation or because of other legal circumstances. Trusts which are consciously created are called express trusts anything besides this can be deemed as a ‘constructive trust’. As Aberlard is consciously creating these obligations the clear option available to him would be an ‘express’ trust. For an express trust to be valid as required by the courts Aberlard must act with sufficient certainty, meaning Aberlard must demonstrate a clear intention to create a trust as opposed to creating something else. An example of a valid trust was evidently established In the case of Knight v Knight.

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Express trusts may be divided into further categories mainly the two types are private and public trusts. Express trusts can be classed as private as they are created for the benefit of an individual or a class of individuals whereas a public trust is aimed at promoting public benefit or welfare. The appropriate trust for Aberlard to impose would be a private trust in that Aberlard’s objective is to give the furniture to his children which would be classed as a private gift to his children. The second part of Aberlard’s initial request is in regards to his antique ...

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