Monday, August 12, 2019
Equity and trusts Essay Example | Topics and Well Written Essays - 3000 words
Equity and trusts - Essay Example If each of these elements can be ascertained by reference to Sadhiaââ¬â¢s will and trust instrument, the trustees will be bound by her dispositions. However, the emphasis is on certainty of intention. It was held in Tana & Anor V Tana & Anor, that ââ¬Å"certainty of intention is in many ways the most importantâ⬠certainty.2 Therefore, in a typical case, once the court is satisfied that the ââ¬Å"declarant had the requisite intention it will strive to validate it.â⬠3 It is against this background that the trustees of Sadhiaââ¬â¢s estate should proceed. Bearing in mind that certainty of intention is the most important element for determining whether or not each of Sahdiaââ¬â¢s gifts form valid declarations of trusts, the trustees are advised to proceed with this mindset. The gift of the cottage to Sadhiaââ¬â¢s husband appears at first glance to be a discretionary trust in that the declaration assumes that her husband will do what is necessary to benefit the children of the marriage. In other words Sadhia has left the question of their childrenââ¬â¢s benefit up to her husbandââ¬â¢s broad discretion. Certainty of subject matter is unambiguously Sadhiaââ¬â¢s cottage and that is assuming Sadhia only has one cottage capable of being distinguished from any other realty she leaves behind. The objects of the trust are also unambiguously stated and are the children that Sadhia shares with her husband. The difficulty however, involves certainty of intention. It was held in Wright v Atkyns Turn & R 143 it is possible to descern whether or not there was an intention to create a trust by the words used. However those words must be clear and imperative4 although he failure to use specific words will not render the creation of a trust invalid.5 That said, the use of the words ââ¬Å"in full confidence that he will do what is necessary to benefit our
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