Table of Contents
It is recognized by the English Law that it is by the power of a testator to come up with a testamentary trust through a way of a will and that trust is upon effect only if it is demised by the testator. Nevertheless, the trust validity will only depend on if certain elements are satisfied, this are mostly developed by the common law. There are the three trust certainties that are mandatory to be met by the testamentary trust which include; certainty of subject and certainty of object. More of requirements are needed and will be dealt with in our research below. If by any chance these conditions are not satisfied then the purported trust will be rendered invalid. Earlier, a settler alleged to come up with four ion trusts through a will which are not similar which was to address on how the various portions of his estate were be shared upon by the beneficiaries. There is the first presentation of the brief overview of the laws on testamentary trust then a legal rule is applied to those facts presented. In this, it will be put to notice that three of the four bequests are not valid and if there is a valid one it will still fail to set the testamentary trust.
Applicable legal rules
It is noted that there are no specific laws to the creation of testamentary trust. However, it is a trust since it is created by the way of will. Therefore, the testamentary trusts are the basis of a will; they are required to meet certain formal requirements recorded in the Will Act 1837, which are:
- That the testamentary trust should be signed in the form of writing
- That it is the obligation of the testator to sign it or can be signed by the other person if and only if they are directed by the testator and if the testator is present.
- The testator accepts the signature if the witnesses are two or more.
There are requirements, which should be met by the testamentary trust; they include:
- There should be a declaration of trust by the testator
- The trust should be in accordance with the formal requirements
- The settler should make up the trust during its creation.
- The trust must meet this three requirements (certainty of object, intention and also subject)
- The trust should comply with the law
- It must also recognize legal title in the property issue to the trustee.
Various circumstances lead to the testamentary trust to be regarded as invalid in law. First and foremost is if the trust creation requirements are not satisfied. Similarly, if the subject matter of the specific trust is not identified then the trust will be rendered void or if no clear mechanism of identifying the subject matter of the trust is identified. Another failure of the trust is that if the beneficiary is not identified and cannot be determined by the court. The above cases relates to the satisfaction of the three certainties of the trust. The common rules of the law include the rules against the extreme accumulations, rules that are against the contravention of insolvency laws.
For the testamentary trust to be valid, it must have the interpretation against the rules of the wills. If the requirements are not met then the then existence of any of the condition for invalidity will lead to invalid trust, the fact remains that the testamentary trust was created in a will whereby the conditions about the will have not been provided. For the analysis purposes, it is viewed that the will was signed by the testator and thus the testator acknowledged the signature with presence of witnesses. It is therefore important to assess the various bequests in the presence of the certainty of trust.
It directs sister Jojo to divide $200000 with an expectation for the amount to be divided among settler’s friends. The creation of trust is vividly seen, as he trusts Jojo to share the amount to his friends therefore meeting the intention requirement. The subject matter of the trust that is meant to be transferred to the friends is also put into consideration because the only amount that has been put aside is $200000. The money can also be from his estate and that is only if the money has not been set aside therefore the need for the identification of the property is met accordingly.
An intention to transfer the bequest to nephew Milo is clear in the mentioned bequest. The requirement as to intention is met since the intention to bequeath is stated. However, it should be noted that generally the intention relates to bequest, and rather not as a trust. Therefore, under ordinary will laws, the bequest will devolve to the nephew rather than as a testamentary trust since intention to create trust is not indicated. It cannot be presumed that there has been no intention to create trust, however the circumstances around the case must be clear or inferable. Bequest d further confers legal title in the trustee’s property in issue14.There are no stated means of determining the exact value of the property, however there exists methods to do it. It would involve getting half of the amount present in the safe and handing it as a bequest to the nephew. Validity of the bequest is also guaranteed, since nephew Milo, in this case, is clearly identified as the beneficiary.
The settlor expresses that he would leave to the executors the rest of his estates to hold it on trust for the employees and ex-employees of the hospital. Therefore, the intention to create trust in this case is clear. It is however not identified who the subject matter of the trust is. It would mean that at the time of writing a will a property never existed if the subject matter talks of residual estate, an issue that would result in transferring of future property: after its amount is determined. However, it cannot be concluded that future property has been sufficiently identified due to Re Ellenborough ruling, which dictates that property, subject of the bequest, can only be future and not present property. A nonsufficient description of the beneficiaries will cause the trust to fail and become void, since the subject matter of the trust is not fully identified. , and the court would not determine that. The identification mechanism for the subject matter of the trust vests the latter on a future trust, which is not, cannot be assured of existence. Furthermore, details for the identification of the beneficiary are not sufficient, since he talks of employees of a hospital and referring at the same time to the dependents or family of “such persons” as may be selected by the executors. Hence, the trust fails since the beneficiaries or objects are not sufficiently identified.
This bequest identifies clearly the property to be bequeathed, which is £10,000 in this case. Gamilla, the niece, in this case; is also clearly identified; therefore, the subject matter is not questionable. The certainty of intention to bequeath the property is however questionable. The bequest seems to be a reward granted to Gamilla upon completion of adult education in five months. However, the intention to create trust cannot be conclusively inferred from such wording. The testator would have used words to suggest existence of an intention to create trust rather than grant the niece a reward, and under these circumstances becomes difficult to infer that the intention to create trust was sufficient. This therefore renders void the resulting trust.
Some people are sensitive to plight of others; this brings about the action of the biologists who argue that the social behaviors possessed by the people are the main precursors of the human morality. They believed further that morality should not grow out of behavioral rules and if they do, it is therefore the responsibility of the biologists to say what those rules are. Trust of imperfect obligation is a trust that has no defined human beneficiary, which at first sight appears to breach the beneficiary principle in that the trust is for a specific purpose. They have been given a description of anomalous trust category that benefits the public in a particular way.
The trust for the welfare of people can deem to be enforceable. The law distinguishes between the trust of animal welfare and trusts for the upkeep of certain people. The law stated here is clear however, the approach used by the court lacks principle. It should be put in mind that the issue to do with perpetuity is necessary for such trusts. It is possible to state that the trust must not continue longer than the perpetuity period. Moreover, the animal lives have not really been recognized as lives for calculating the perpetuity period. The courts have chosen pragmatism over the adherence of legal principle.
There has been a judicial consideration of why such expectations should not be interfered with in terms of existence. Generally, the trusts above are classified into three categories; trust that relates to tombs and monuments, trusts for the private provision of people and trust for benefiting important people. The trusts mentioned are not really of historical importance and hence continue to be popular in will.
The trust can be established by a settler for the masses had to say for themselves when they die. Therefore, there was no existence of human beneficiary. According to the court the trust could effect as a charitable trust that is valid as the public members could benefit in one way or another by attending. Therefore, the masses say in public may be charitable even if they are set to belong to private obligation, through this they will strive to get a trust that is deemed charitable.
There is no reason for the trust if imperfect duty to limited for the legatees to give assurance for using the money as requested. The trust outside exceptions should be put into consideration so long as they meet the particular criteria. The beneficiary principle is violated by the trust of imperfect obligation. However, there is a control element which should be remembered by these trusts and therefore comply with the valid express trust formality.
A testimonial trust is a trust that arises once the testator is dead, where it is stated in his will. A will may have more than one testamentary test hence it addresses a portion or a whole estate. A testamentary trust protects the law of minor children who can be so vulnerable to abuse. It is also very cheap to use since it is only the cost for making a will, which is required. A testamentary trust also has various disadvantages listed below:
- One is often required to reappear in court severally to ensure that his trust is being handled in a responsible manner. This may involve some fees
- Amending an account is slow, time consuming and expensive
- If a trustee is not available during the reading of the will, they can be replaced with another trustee
Due to the disadvantages associated with this testimonial trust, lawyers often recommend creation of a revocable living trust.
A trust of imperfect obligation is one that has no explained human beneficiary, which in some way benefits the public. These kinds of trusts are not popular but they continue to be mentioned in the wills. The people for instance may be charitable hence the upkeep of such people is guaranteed. For instance, one can form a trust based on an animal, and are paid if it stays alive for a given period.
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A trust of a certain amount can be created to be used for the upkeep of a tomb or even a monument. A trustee can decide to state that upon his death, his tomb be kept neat and clean always. The high court ascertains if the trust is valid enough. The trusts of imperfect obligation need to stand by themselves and not be extended in the future.
Only after meeting the formalities of the creation of a trust would a testamentary trust be valid. Validity of a testamentary trust can also be concluded upon if a testator has the capacity to make a will, conforms to the applicable laws and to the three certainties of trust. In order to assess the validity of the four bequests that were key in the study, legal conditions are assessed against the case study presented. Of the four presented bequests, only the second is valid; which entails the transfer of bequest to nephew Milo. It clearly reveals the intention, by the way of will, to transfer the property. Both the property and the beneficiary are identified. The rest fall short of meeting the requirements for a will identified as valid. It is under the ordinary laws would the transfer be, and rather not as a testamentary trust, since there is a lack of clear intention to create a trust. None of the bequests would have been successful were the transfer to be within the frameworks of a testamentary trust. Since friends would be difficult to determine in the first bequest, certainty of the object would be lacking. On the other hand, the alternatives mention too many friends; hence make it difficult to ascertain them. The fourth case is concluded upon as defective, since the evidence to create a trust is insufficient.
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