These three gifts are all attempts to create

These three gifts are all efforts to make trusts and therefore must be dealt with under the regulations of trusts. In order that a trust may win a trustor must do his purposes clear in order to make a binding trust anonymous . He must show himself in footings which are sufficiently certain in order that the legal guardians may cognize what they are obliged to make, and to enable the tribunals, if need be, to place the duties which it must implement against the legal guardians. These demands fall into three classs. First the trustor must do clear that his intended legal guardians are under an duty to transport out his wants, secondly the trustor must do clear what belongings is to be the topic to the trust and thirdly the trustor must place who is to be the beneficiary to the trust.

A.?100,000 to My Sister Jane

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In order to make a successful trust there must be certainty as to the nature and the extent of the trust belongings [ 1 ] . The cogency of a trust will depend on “first, that the words must be imperative, secondly, that the capable affair be certain and thirdly, that the object must be every bit certain as the topic [ 2 ] .”

Certainty of purpose agencies that must do it clear by the words he uses that the holder or transferee of the belongings is under a compulsory legal duty to transport out his wants so far as the jurisprudence allows. The job with this trust arises in relation to the purpose. The “words must be imperative. [ 3 ] ” If a the words used are uneffective to enforce a trust so the beneficiary of the belongings will take it perfectly [ 4 ] .

What is required is captive to necessitate the holder of belongings to transport out the settlor’s wishes as opposed to mere moral or honorable duty. This means that words that are expressive of a mere hope or desire do non unwrap a sufficient purpose to make a trust unless, on the whole building of the gift, this is the purpose of the trustor [ 5 ] .

The affair is one of building, and in some instances, even where the word trust is used a trust will non be imposed. As Henry has taken little attention to tag out the trust belongings or specify its objects this is likely to reflect on his purpose to set up a trust in the first topographic point. Although the fortunes in which a tribunal will accept that there is sufficient certainty of purpose to put a legal duty on the holder of the belongings to transport out the settlor’s wants will change from instances to instance it is likely that in these fortunes no trust existed. If there is non sufficient certainty of purpose, the holder or receiver of the belongings will be perfectly entitled to it and may utilize it as he or she wishes, either in conformance with, or contrary to, any hope or desire that the trustor may hold expressed when reassigning the belongings. It is submitted in an analysis of the instance jurisprudence, the words used in making this trust do non make sufficient purpose and that the gift will neglect and Jane will be entitled to he endow perfectly.

B.Priceless Collection of Beatles Memorabilia

As has been discussed above in order to make a successful trust there must be certainty as to the nature and the extent of the trust belongings [ 6 ] . The cogency of a trust will depend on “first, that the words must be imperative, secondly, that the capable affair be certain and thirdly, that the object must be every bit certain as the topic [ 7 ] .” It can be seen here that certainty of purpose and certainty of capable affair have been created. The trouble here arises with certainty of object. In so far as Henry has non indicated clearly precisely to whom this memorabilia is to be distributed to and how this should be allocated.

Certainty of objects is possibly the most of import certainty and this requires that the donees under the trust must either be named separately or be described by mention to a category description that is itself certain in range. .

First it is necessary to find the nature of the trust impacting this contribution as this will assist find whether there is certainty of objects of the reversionary category. The money is to be divided to between “those relations whom Gwen sees to be fit to have this memorabilia. The legal guardians have discretion to allocate the trust belongings among the category “as they see fit.” This portion therefore discloses a discretional trust for the category or a particular power of assignment given to the legal guardians to name amongst the category. Of class, the difference is important so far as the executors are concerned because, if this a discretional trust, they are under a compulsory duty to do a choice from among the category and administer the belongings whereas, if this is a power, they may make up one’s mind non to administer and can non be compelled to make so. Whether this temperament discloses a trust or a power is a affair of building and the differentiation is non ever easy to pull [ 8 ] .

The image of certainty becomes really clouded when seeking to find whether certainty of objects exists in pattern. In simple footings, jobs with certainty of objects arise in relation to three distinguishable constructs. First, there are “fixed trusts” , being trusts where the legal guardians have no discretion as to whom benefits under the trust are to be given or in what portions ; both the portion and the right of the donees to that portion are fixed by the trustor. Second, the issue will originate where there is no trust at all and it is in fact a power of assignment. A power of assignment is a power given to a individual to administer belongings amongst such individual within a named category as the individual exerting the power chooses, in such portions as he chooses, or non at all. It differs from a discretional trust in that a beneficiary of a power has no responsibility to administer the belongings at all and may lawfully do no choice. Third, and is the instance in the present scenario, there are discretional trusts, being trusts where the legal guardians have a responsibility to administer the trust belongings, but a discretion as to whom within a peculiar category shall really profit and in what portion.

The trial that must be applied is whether it is possible to state with certainty whether any given individual is, or is non, a member of the category. Unfortunately, although this trial is easy to province, it is hard to use because the taking instance on its application gives three alternate attacks [ 9 ] . Harmonizing to Stamp LJ, the trial is satisfied merely if it is possible to state in fact whether any given individual is, or is non, a member of the category and this requires both the category to be defined with preciseness and there to be adequate grounds available to do a positive or negative pick in regard of all of the possible applications. This is a rigorous trial and it is hence improbable that on this footing this gift would win as Henry has said that the memorabilia should travel to anyone as Gwen sees fit and it is non clear what demand will fulfill the demands, so it is non even clear which demands need to be satisfied. It is likely that the gift would neglect. The 2nd attack is to that the trial is satisfied if it is possible to state, in theory, whether any given individual is, or is non, a member of the category, irrespective of whether there is adequate grounds to do such a determination. The category must be conceptually precise. It is improbable that Henry’s gift will run into this demand and hence once more on this attack the gift will neglect. We have no indicant how wide or how large this category of people is and what pre necessities will do Henry’s relatives autumn into this peculiar category. If it was indicated that all of Henrys’ relations with brown hair or below the age of 16 should profit so this category of individual would be at least conceptually clear.

The concluding version of this trial is that it is satisfied if it can be said that of a significant figure of individual that they were inside the category, even if it could non be said of every possible individual whether he or she was non. It is likely once more that this trial could be satisfied in some respects in so far as they will merely be individuals that are related to Henry. Although on analysis of the instance jurisprudence and the other two trials that are forwarded it is submitted that this trial will non be satisfied and that this gift will therefore fail.

C.?25,000 to the Uxbridge Guild of Solicitors

The trouble with this trust is that it may be conceived as a purpose trust. The beneficiary rule – or the regulation against non-charitable purpose trusts is cardinal to the cogency of a trust. An illustration of this can be seen in Re Astor [ 10 ] which was a trust for “the constitution, care and betterment of good apprehension, sympathy and co-operation between nations” and this was held to be null. Similarly in the instance of Re Endacott [ 11 ] a testamentary trust for the intent of “providing some good utile commemoration to myself” failed for privation of a human donee. The Case of Re Astor [ 12 ] demonstrates the worthiness of the settlor’s the settlor’s intended intent is irrelevant in finding the cogency of the trust, unless the intended intent is so good to the community that it amounts to a charity.

The significance of every trust must be determined in the visible radiation of the words used by the trustor. It is absolutely possible for a trust which, on its face, appears to be for a intent to be construed as a trust for an person or single. There are particular sorts of intent trust which really benefit persons either straight or indirectly and the tribunal may continue them, the present instance may good be such a trust. This is, of class, known as the Re Denley [ 13 ] rule. They are trusts for intents which the tribunal holds valid merely because there are persons with venue standi who can use to hold the intent carried out. Of class, the single straight or indirectly profiting have no just involvement in the trust belongings and will be donees in jurisprudence. In Re Denley [ 14 ] it was explained that the beneficiary rule is designed to extinguish purpose trusts of an abstract or impersonal nature, so that any intent which may be accomplished with certainty and which does thereby confabulate a benefit straight or indirectly on human donees should non be declared null. Therefore in Re Denley [ 15 ] , a trust for the care of a athleticss land for the employees of a company was valid on the land that the employees has locus standi to guarantee that the legal guardians put the intent into consequence. This is similar to the state of affairs that arises here as they money is to be used for an one-year dinner which will be for the benefit of employees. Therefore on this analysis this gift will win.

However farther duties must be met in order for this trust to win. As such trusts are true purpose trusts they must non conflict the regulation against sempiternities. Under this rule, those non-charitable intent trusts which, as an exclusion to the beneficiary rule are regarded as valid, must non last longer than the sempiternity period ; that is for no longer than a certain maximal continuance [ 16 ] . The ground is that as a affair of public policy, belongings should non be tied up indefinitely and so be lost to the general economic system. The maximal period for which such a trust should last for is “a life in being” plus 21 old ages. A “life in being” is merely a individual alive at the clip of the purpose trust coming into being and it is the length of that person’s life, plus 21 old ages, that defines the maximal period of continuance of the trust. Most of import nevertheless, is the regulation that it must be possible to state at the beginning of the trust whether its continuance will be confined to the sempiternity period and any possibility – of even the most distant bad sort – that it will non, will render the trust nothingness for sempiternity [ 17 ] . Consequently, in order to avoid sempiternity, the purpose trust must be expressly or impliedly limited to run within the sempiternity period. This can be achieved by calling the lives in being and restricting the trust to 21 old ages from the decease of the last subsister, by restricting the trust to 21 old ages from the testator’s decease, or by curtailing the trust to “such period as the jurisprudence allows.” There appears to be no such proviso in this trust and it is for these grounds that this trust is likely to neglect. Besides it should be noted that there are many exampled of settlor’s trying to give belongings to unincorporated associations which appear to fall foul of the beneficiary rule. The job is merely that unincorporated associations have no legal personality and can non be donees under a trust. Therefore if this is an unincorporated trust it can be confirmed that it will about surely fail



Figg V Clarke [ 1977 ] 1 WLR 603

Hunter V Moss [ 1993 ] 1 WLR 934

Knight V Knight ( 1840 ) 3 Beav 171

Lambe V Eames ( 1871 ) 19 WR 659

Lassence V Tierney ( 1849 ) 1 MAC & A ; CR 551

McPhail V Doulton [ 1973 ] Ch 9

Re Astor [ 1952 ] Ch 534

Re Conolly [ 1910 ] 1 Ch 219

Re Denley1969 ] 1 Ch 373

Re Endacott [ 1960 ] Ch 232

Re Golay [ 1965 ] 2 ALL ER 660

Re Kayford Ltd [ 1975 ] 1 WLR 279

Sprange v Barnard ( 1789 ) 2 Bro CC 583

Wright V Atkyns ( 1823 ) Turn & A ; R 143


Birks P, ( 2002 ) , “Receipt in Breach of Trust” , Hart Publishing, Oxford

Hayton D & A ; Mitchell C ( 2005 ) “ The Law of Trusts and Equitable Remedies” , Twelfth Edition, Thomson Sweet & A ; Maxwell

Ramjohn M, ( 2004 ) “Cases and Materials on Trusts” , Third Edition, Cavendish Publishing

Riddall J G, ( 2002 ) , “The Law of Trusts” , Sixth Edition, Butterworths, Lexis-Nexis

Todd P & A ; Watt G ( 2003 ) , “Cases and Materials on Equity and Trusts” , Fourth Edition, Oxford University Press

Watt G, ( 2004 ) , “ Textbook on Trusts” , Oxford University Press


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