This essay aims to critically assess the statement “it is well settled that a trust can be created without using the word ‘trust’ or confidence’ the like: the question is whether in substance a sufficient intention to create a trust has been manifested.” In order to thoroughly discuss the topic, this essay will consider the creation of a trust and the approach to establishing the certainty of intention. The essay will also argue whether it is possible to create a trust without using the words trust and confidence. In any case, it could be argued that in neglecting the genuine wording of the deed, the courts of equity are moving away form the rule behind the certainty of intention by attributing an artificial intention, which was not initially …show more content…
Although the words used by the settlor must be precise, the courts will however accept any sort of words given as long it discloses the obligatory intention and data. As stated in Re Kayford Ltd by Mergarry J, ‘the question was whether in substance a sufficient intention to create trust has been manifested’. This means the trustee must exhibit either through the language used, or by his conduct that he expected a legally binding obligation, that is an obligation, which is enforceable by the beneficiary against the trustee. Equity looks at intent rather than form, this means there is virtually no need to use any technical language to create a trust. In the event that it is just a solicitation, precatory words will be apparent, for instance ‘wishes’, ‘demands’, …show more content…
The question is whether the courts are ready to induce a prompt and genuine intent to create a trust from the use of precatory words. There is a general rule that the courts won’t perceive a trust when a settlor uses ‘precatory’ words such as hope, desire and confidence. On the other hand it is important to consider all the circumstances in each case. It was eventually illustrated in Lambe v Eames , where a testator gave all his estate to his widow and used the words “…to be at her disposal in any way she may think best for the benefit of herself and her family”. It was held by the courts that the words were ineffective is creating a
“Trust takes years to build, seconds to break, and forever to repair. - Anonymous”. If you have ever felt isolated from society, or feel that you are constantly begging for the mercy of your own subconscious, then you know the pain accompanied by expending trust. It is imperative for humanity to cultivate trust; if we lose it, we will simply degenerate into insanity. For instance, in the texts “On the Sidewalk Bleeding”, “The Tell-Tale Heart” as well as “The Landlady”, characters were tasked with uncovering the role that trust plays in conquering challenges. In doing so, they also suffered through fluctuating degrees of tailored hardships.
...am R, Incompletely constituted trusts: Covenants to settle property (Equity & Trusts: Text, Cases, and Materials 2013).
...trust and confidence, which implores for a doctrine of good faith. Hence, although the future of a general principle of good faith in English contract law may not be certain, a judicial movement is slowly gaining momentum to increase the steps towards its realization.
Trust is the first one of the characteristics and is very important in our profession. Without trust in our profession we could not accomplish anything. In Chapter on...
However, there is an argument of opinion regarding how and why a secret trust should face outside the Wills Act 1837.Thus, Lord Warrington said in Blackwell v Blackwell case that what is enforced is not a trust imposed by the will but one arising from the acceptance by the legatee of a trust communicated to him by the testator on the faith of which acceptance the will was made or left unrevoked. The dehors’ theory and fraud theory are necessary to explain the enforcement of secret trust. Further this theory elaborated secret trust not compulsorily match with Section 9 of wills act 1837 .The orthodox view of this theory is that secret trusts are express inter vivos trust to which the requirements of the wills act are of no relevance. If the
Throughout history, trusts have been a beneficial and sometimes critical part of estate planning. Trusts have many different uses, and can be valuable to individuals looking to preserve, secure, or manage assets and property through a separate title. Trusts have many different uses throughout the estate planning and the financial planning industry. There are all sorts of tax advantages and loopholes that trusts can take advantage of when used properly and effectively.
The legal issue of constitution of trusts is very important, judicial decisions over the years on cases where trusts were not properly constituted indicates that constitution of trusts could be quite complex and must be very cautiously done by a property owner as a simple factor could make his trust void. An express trust is completely constituted either by effectively transferring property to trustees or by effectively declaring a trust. In case of personal property, the declaration of the trust may be put in writing; however, equity will not perfect an imperfect gift. It is only when the trust is constituted that it is binding on the settlor. The long-standing idea that equity will not perfect an imperfect gift can be traced back to the 19th century cases of Ellison v Ellison and Milroy v Lord , and was further emphasized in the 20th century in the case of Re Fry .
Lord Langdale MR identified the three requirements for a valid trust in Knight v Knight, where he claimed that a trust would only come into existence if there was certainty of words, certainty of subject matter, and certainty of objects. The finding
Intention to create legal relations can be defined as follows. ‘An agreement will only become a legally binding contract if the parties intend this to be so. This will be strongly presumed in the case of business agreements but presumed otherwise if the agreement is of a friendly, social or domestic nature.’ Source (HNC unit 5 Business law course book) In determining whether the parties intend their agreements to be legally binding the court is guided by two presumptions. Parties to a domestic or social agreement do not intend to be legally bond. Parties to a business agreement intend to be legally bond. These are presumptions only and can be rebutted by sufficient evidence to the contrary. Domestic and Social Agreements Balfour v Balfour (1919) Merritt v Merritt (1976) Simpkins v Pays (1955) Business Agreements Jones v Vemons Pools (1938) Source (HNC Business law notes) One of the essential elements in the creation of a binding contract, this intention is implied by the fact that it is not expressly denied. If expressly denied (as in a so-called gentlemen's agreement) the contract may not be enforceable. Consideration {text:bookmark-start} {text:bookmark-end} If you look at a legal agreement or contract, you will generally see a phrase in the opening paragraph indicating that the parties agree on an amount of money or "other good and valuable consideration." The concept of consideration has a long history in the law, but simply means something of value. An exchange of consideration between the parties to an agreement is necessary fo...
...d acts tot heir detriment on the basis of trust. But there are some contradicting grounds between the two. Constructive trust is generally created by the action of the parties whereas a court order is mandatory in proprietary estoppel. Furthermore, the nature of constructive trust is to identify the true beneficial owner of the land and it reflects the nature of a person's interest but the court makes the minimum award which are essential to proceed for justice under proprietary estoppel, which allows the courts to provide such remedy fits to the facts of the case and the remedy is not necessarily be similar to the share in the beneficial ownership of the land to a monetary award.
of trust can begin to shape. “We have to recognize that there cannot be relationships unless there is
However by doing so they further increased the amount of discretion that the courts apply. Also implied trusts are divided into resulting trusts and constructive trusts. Resulting trusts as defined in Dyer v Dyer are decided as in favour of the person who contributes to the purchase price of a property where there is no evidence that a gift or loan was intended. This idea was confirmed in Westdeutsche Landesbank Girozentrale v Islington BC, which also set out four main principles of presumed intention resulting trusts: 1. That Equity operates on the conscience of the owner of the legal interest 2.
Furthermore 3 certainties need to be established in order for the trust not be void. Firstly, Certainty is vital to the administration of any trust, it is defined by Lord Langdale, Master in Knight V Knight (1840) ‘A trust will only come into existence if there is ‘certainty of words, certainty of subject matter and certainty of objects’ Certainty of intention needs to be considered, this is essential in order for a trust to be valid as the trustees must know what they are required to do. Andy intended for Maeve and her sister lily to have his collection of cars except the rusty one Certainty of subject matter is the next step which is crucial in order to know exactly the amount of the property which the trustee is responsible for, the case of Anthony v Donges shows when certainty of subject matter is not valid, in Andy’s situation the subject matter was the collection of cars he meant for Maeve and her sister lily to
Trust is defined in Webster’s Dictionary as “firm belief in the reliability, truth, ability, or
What is trust? Is trust essential to the way we live our everyday life? The Oxford English Dictionary (OED) defines trust as a quality or condition of being trustworthy; loyal; reliable. For me, trust goes into a deeper meaning as I continue to live, grow and experience multiple challenges in my life. Trust in knowing and having that feeling that you believe in someone with your heart, knowing they will cherish it inside of them like treasure.