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can someone help me on how you would answer this q please.

mak20089

Consider the effect of the following testamentary dispositions:
(a) £10,000 to my trustees to be distributed by them amongst such eminent scholars of
Trusts Law as they see fit, and if there is a dispute as to who may be within the class
of beneficiaries, the matter shall be resolved conclusively by my trustees.
(b) £3,000 to my sister, Melanie, to be at her disposal in any way she may think best for
the benefit of herself and her children, and whatever is left of this amount at her death
is to be given to her youngest child, Ken.
(c) 3,000 bottles of Chateau Poubelle (red wine) to be held on trust for Laurie, my
nephew. (The testator has 5,000 bottles of Chateau Poubelle in his cellar at his death).
(d) I direct my trustees to give a substantial part of the rental from my properties to
provide for my son, George.
(e) The bulk of my residuary estate to Charlott

Reply 1

sophie_snail

Isn't this the pre-seen exam questions that you've started another thread about, and we came to the conclusion that you can't ask for help as it would be cheating?

Also... Surely you're lecturers would be clever enough to trawl TSR to see if any people are asking for help on here...

Reply 2

mak20089

Original post by sophie_snail

Well as it was such a problem i decided to do as you and the others suggested and ask for help, and our university has not told us we cant get help or anything. It is not as if we can take the answer with us in the exam so if anything i am getting help like any student on this website and revising.
Plus its not as if i have directly come to you that you seem so bothered about it. If i did please then tell me what you think of me asking for HELP!!! and plus its rich coming from you as you seem to be finding me so easily so you must be looking for some sort of answers for yourself too or you just might be bored either way. Unless your going to do what students come on this site to do which is help one another please don't post on my thread again.

Bye. Have a nice week.

Reply 3

Norton1

(d) is I suspect a trust which would fail for want of specificity

thank you

Asking for help implies you're stuck and would therefore explain to us what you think first. I say this to anyone who just sets out a question.

Reply 6

mak20089

Original post by gethsemane342

Asking for help implies you're stuck and would therefore explain to us what you think first. I say this to anyone who just sets out a question.

This is my answer

A testamentary disposition is any gift of any property by a testator under the terms of the Wills Act 1837.

According to section 9 of the Wills Act 1837, a will is only valid if it is made in writing and signed by the testator in the presence of two or more witnesses. If these formalities were not present, the will is not valid and cannot give rise to a trust. Whenever someone wants to create private express trust they must fulfil three certainty’s found in the case Knight v Knight. Certainty of intention, certainty of subject and certainty of beneficiary. If these certainties are not present, there is no binding trust.

1. Certainty of intention requires that there is evidence to show that the testator intended to create a trust rather than an outright gift Heart v Tribe.
It was held in Re Kayford that there was no need to use the word 'trust' in order to establish certainty of intention providing that the wording of the disposition was such that it was clear that there was an intention to create a trust. The imposition of a trust is an onerous responsibility so the trustee will be reluctant to impose a trust unless it is clear that this is what was intended. In Wright v. Atkyns, it was held that the words used must be imperative; this means that it must be clear that the person to whom the property passes is holding it on behalf of others.

2. Certainty of subject it must be clear what property is part of the trust. This is vital element to a will if there is a property involved, which our case is necessary because our testator has left an estate to Charlotte. The trustee who is legally obliged to make all the trust related decisions with beneficiary interests in mind and may be liable for damages in the event of not doing so) and to the rest of the beneficiary but conditions do apply Wright v. Atkyn.

3. Certainty of beneficiaries, it must be clear who the beneficiaries are. IRC v Broadway.

There are four categories of uncertainty that can affect the validity of a trust: conceptual uncertainty, evidential uncertainty, ascertainability and administrative unworkability. "Conceptual uncertainty" is where the language is unclear, something which leads to the trust being declared invalid. "Evidential uncertainty" is where a question of fact, such as whether a claimant is a beneficiary, cannot be answered; this does not always lead to invalidity. "Ascertainability" is where a beneficiary cannot be found, while "administrative unworkability" is where the nature of the trust is such that it cannot realistically carried out. Trustees and the courts have developed various ways of getting around uncertainties, including the appointment of experts to work out evidential uncertainty, and giving trustees the power to decide who is or is not a beneficiary.

A) The testator has hope that the his trustee distributes money to the scholars of Trusts Law as they see fit, and if there is a dispute as to who may be within the class of beneficiaries, the matter shall be resolved conclusively by my trustees. In Lambe v Eames, the trust failed for lack of certainty of intention as a husband left money to his wife for her to use as she thought best. This is quite complicated as the word 'trust' is used in conjunction with predatory words. In Re Adams and Kensington Vestry, courts stated in that case said that it was important to read the disposition as a whole to ascertain the intention of the testator. Here, the testator has used the word trust but has not specified to whom he wishes the 10,000 to go to he has given the responsibility to the trustee to divide it between the beneficiaries. Equity does not allow the trustee to walk away with the testator’s money. This trust is void, because there is lack of certainty of who exactly the beneficiaries are.

B) The testator has stated that he wants £3,000 to be benefited to his sister Melanie and whatever left to be passed onto her youngest son which he has stated his name, this is a necessary element because at the time the will was drawn together the testators sisters youngest child was Ken, but maybe she was to have another child, or was to adopt this could break the trust. We see immediately there is certainty of intention so that requirement is met Heart v Tribe. There is certainty of subject which is a sum of £3,000 but the testator has not said from where the £3,000 is to be given to her from is it from his assets left, from his bank. This would be something that the trustee and courts would need to consider for them to be able to pass on the assets to Melanie.
C) The testator has desired that he would like his nephew 3,000 bottles of wine. If Laurie is a minor under s.33 Wills Act 1837 he would be classified as a minor and would not be able to have the gifts given to him till his 18, till then will be held by a executor. If there is a minor in a will that is one option for him/her or if the testator states that the minor’s parents or guardians take a receipt of the gift on the child’s behalf until they are 18. We do have a certainty of intention so we see clear trust created Heart V Tribe. There is certainty of subject, because he has stated 5,000 in his cellar and he has stated who the beneficiary is. The trust will be accepted. But as there has not been given any direction on what to do with the rest of the 2,000 bottles the courts would be able to decide what the trustee may want to do with them, but the trustee can’t decide to pass the rest to Lorie as they will be breaching duties under the trust act. Wills Act 1837.
D) The testator has hope for some substantial part of the rental from my properties to provide for his son, George. We see certainty of intention Heart v Tribe we see certainty of object IRC v Broadway. The certainty of subject matter is not clear to what property is part of the trust Re Jones. The testator has not given any information from which of his properties he would desire for a substantial part of the rent to go to his son. Also ‘substantial’ is not a clear enough indication on how much he would want, maybe to the trustee £100 is substantial and maybe to the testator is £50 . These elements would be considered by court.
E) In this case the testator has stated that he wished ‘the bulk of my residuary estate to Charlotte’ Residuary gifts are complicated situations a purposed trust will be void if the property intended to from the subject matter of the trust obligation cannot be clearly identified. Expressions such as “the bulk of my residuary estate” (Palmer v Simmons) are too uncertain. The other end of uncertainty spectrum is to be found also in Boyce v Boyce where the property was certain but the individual entitlement was not. The residue of an estate is everything that is left in the testator’s estate after all debts, bills and taxes have been paid and all specific and non-specific gifts have been distributed. Leaving the residue of an estate to a named beneficiary is called ‘residuary gift.’ This is the most common way that a testator can ensure that his residuary gifts are all passed on to his chosen beneficiary which is Charlotte, rather than falling under the intestacy rules but whether the courts find the trust void is uncertain.

Reply 7

mak20089

Original post by gethsemane342

Asking for help implies you're stuck and would therefore explain to us what you think first. I say this to anyone who just sets out a question.

I really want to know if i have the right idea and if i have stated the necessary elements and the necessary points. I am not looking for a right and wrong i just want someone to tell me if i have got the drift of it so that i can revise from this as like my template sort of speak.

Reply 8

sophie_snail

Original post by mak20089

People are more inclined to help if you're a bit more specific, and say things along the lines of 'is this right'... or with reference to a specific bit of law you don't understand... rather than copying and pasting your questions :smile:

It's not a criticism at all, but I really would be careful of plagiarism as I would imagine most uni's would check TSR to see if any students are asking questions on a piece of work (whether it's coursework, or pre-seen)... Asking for clarification or help is a completely different matter...

Reply 9

mak20089

Original post by sophie_snail

As you see i have my answer, and i just wanted direction to see what i had typed up if it was correct or not. Secondly as i mentioned before its a seen q i am sure the univ' are aware that students will be asking for help or trying to get answers.