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    Hi everyone,

    I'm doing a problem question regarding a will but I seem to have not grasped something core to Equity and Trusts to answer it. I would appreciate it if someone could clarify for me!

    Basically, the main problem is applying the three certainties to a number of clauses in the will. One of them is clearly attempting to create a trust: 'I give £x to my trustees to be distributed amongst y' and thus the certainty of intention problem is obvious to apply.
    But the other clauses don't say anything about attempting to create a trust, they just say 'I give £x to y.' How do I apply certainty of intention to that clause? Is it even an express trust? Is a will in itself an express trust?

    Thanks in advance
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    (Original post by pp248)
    Hi everyone,

    I'm doing a problem question regarding a will but I seem to have not grasped something core to Equity and Trusts to answer it. I would appreciate it if someone could clarify for me!

    Basically, the main problem is applying the three certainties to a number of clauses in the will. One of them is clearly attempting to create a trust: 'I give £x to my trustees to be distributed amongst y' and thus the certainty of intention problem is obvious to apply.
    But the other clauses don't say anything about attempting to create a trust, they just say 'I give £x to y.' How do I apply certainty of intention to that clause? Is it even an express trust? Is a will in itself an express trust?

    Thanks in advance
    A will is not, in itself, a trust but you can give property away on trust in a will if you choose to do so. For example you could leave (a) £10,000 on trust for X and (b) £20,000 to Y absolutely. (a) shows an intention to create a trust and (b) shows an intention to make an outright gift . The 3 certainties still apply so you could, for example, have a clause in a will which states 'I give £20,000 to be shared equally between my friends' which would fail for lack of certainty of objects.
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    (Original post by Bitesizelaw)
    A will is not, in itself, a trust but you can give property away on trust in a will if you choose to do so. For example you could leave (a) £10,000 on trust for X and (b) £20,000 to Y absolutely. (a) shows an intention to create a trust and (b) shows an intention to make an outright gift . The 3 certainties still apply so you could, for example, have a clause in a will which states 'I give £20,000 to be shared equally between my friends' which would fail for lack of certainty of objects.
    Thanks Biteseizelaw that helps. So for the clause in this problem question which simply says "I give £x to y," do I still need to apply the three certainties, including certainty of intention? It just doesn't even seem to be an attempt to create a trust... is it a gift subject to a condition precedent instead (the condition being the testator's death)?
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    (Original post by pp248)
    Thanks Biteseizelaw that helps. So for the clause in this problem question which simply says "I give £x to y," do I still need to apply the three certainties, including certainty of intention? It just doesn't even seem to be an attempt to create a trust... is it a gift subject to a condition precedent instead (the condition being the testator's death)?
    No, it's not a trust and it's not a gift subject to a condition precedent. It's nothing, (or a mere spes or spes successionis if you like silly Latin phrases) until the testator dies. Once the testator dies it's an outright gift (or a testamentary gift, if you like, but nothing turns on that except the incidence of tax).
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    (Original post by Forum User)
    No, it's not a trust and it's not a gift subject to a condition precedent. It's nothing, (or a mere spes or spes successionis if you like silly Latin phrases) until the testator dies. Once the testator dies it's an outright gift (or a testamentary gift, if you like, but nothing turns on that except the incidence of tax).
    Okay thanks, that's clearer now.
 
 
 
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