Essay to a problem question on wills and trust.
Dear Mr York,
I write concerning your voicemail requesting my advice on the validity of the dispositions you intend to make in your will drafted by Cheap ‘n’ Eazy Bespoke Wills Limited. I confirm receipt of the will, flyer and letter from Cheap ‘n’ Eazy Bespoke Wills Limited and the client information you provided them.
You asked me to consider the dispositions in clauses 3, 4 and 5 of your will, therefore my advice in relation to each clause below.
In principle, what you are trying to achieve in relation to these clauses is to create testamentary trusts whereby you will remain the outright owner of the property in question until such date of your death (Milroy v Lord 1862). At this point, the trusts will take effect and the appointed trustees will assume legal ownership of the property, but will be compelled to hold such property for the equitable benefit of those people or classes of people named by you (DKLR Holding co (no.2) Ltd v commissioner of stamp duties 1980).
Given the fiduciary obligations this creates on your trustees, in order to enforce these trusts the intention to create them, the subject matter of them and those who are intended to take beneficial interest from them must be certain (Knight v Knight 1940 49 ER 58). These are known as the ‘three certainties’ they must be clearly reflected in your dispositions in order for your trust to be valid.
From your information, it appears that you intend to create two dispositions here: firstly, a gift of 50,000£ to your brother, Magnus York and a discretionary trust whereby Magnus will hold 100,000£ for the benefit of your nieces, Kim, Francesca and Doris York and distribute the property amongst them as he sees fit.
The problem with the clause as-drafted is, by combining these two dispositions, there is no sufficient certainty whether you intend to oblige Magnus to distribute £100,000 of the sum he receives amongst your three nieces.
It would be advisable to give Magnus a gift on your passing of £50,000, and then declare a clear and separate discretionary trust whereby Magnus will hold £100,000 for the benefit of your nieces.
To create a trust for your nieces, it is not necessary to use the word “trust” since equity looks at intent rather than form. You must clearly demonstrate the intention to impose a mandatory obligation on Magnus to distribute the property amongst them, as opposed to a purely moral obligation (RE Snowden ). In Lambe v Eames , courts have generally made a distinction between the use of precatory and imperative words. Precatory words express a hope, a wish, or a moral obligation, whereas imperative words express a command, a duty. These imperative words are necessary to create a trust but the words used in clause 3: “wish and desire” are precatory words.
The entire clause will be taken as a whole in order to interpret whether the clause intends to create a trust.
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