The Student Room Group

Equity and Trusts Law

The most fabulous of my handbags to my dear friend, Ryan . The rest to James.
The residue of my estate to my dear husband, Frank.

do these clauses of a will, under the presumption that it is properly constituted in accordance to s.9 Wills Act, demonstrate an intention to create a trust or a gift?

I have deduced upon the facts that both are gifts due to the lack of certain intention to create a trust. neither hold the property on trust for another person. neither impose fiduciary duties and obligations. the certainties of subject matter and objects are sufficed. The "most fabulous" does raise conceptual uncertainty pursuant to Re Cox. Yet, following Boyce, if Ryan makes an explicit selection of one of the handbags it will be valid because the remainder will go to James. Furthermore, there are no appointed trustees due to the absence of requisite intention to create a trust. so the relevancy of the certainty of subject matter pertaining to this clause is irrelevant.
Original post by nickb2610
The most fabulous of my handbags to my dear friend, Ryan . The rest to James.
The residue of my estate to my dear husband, Frank.
do these clauses of a will, under the presumption that it is properly constituted in accordance to s.9 Wills Act, demonstrate an intention to create a trust or a gift?
I have deduced upon the facts that both are gifts due to the lack of certain intention to create a trust. neither hold the property on trust for another person. neither impose fiduciary duties and obligations. the certainties of subject matter and objects are sufficed. The "most fabulous" does raise conceptual uncertainty pursuant to Re Cox. Yet, following Boyce, if Ryan makes an explicit selection of one of the handbags it will be valid because the remainder will go to James. Furthermore, there are no appointed trustees due to the absence of requisite intention to create a trust. so the relevancy of the certainty of subject matter pertaining to this clause is irrelevant.


Plainly there is no intention to create a trust in respect of any of the property. Even in respect of a gift, however, there must be certainty as to the property to be given. It is strongly arguable that the intended gift of a handbag to Ryan fails because of the inadequate description of the handbag. It is not possible to know which of the handbags belonging to the testator/testatrix he or she regarded as his or her most fabulous handbag. Accordingly the gift of the remaining handbags to James also fails. Thus the handbags form part of the residual estate which passes to Frank.

The situation in Boyce v Boyce (1849) ER 959 was different. In that case, the testator intended to leave two houses on trust, one of the houses to be selected by the testator's elder daughter, the other house to go to the younger daughter. The trust failed because the elder daughter died before choosing a house. The case is not authority for the proposition that an intended donee can perfect an imperfect gift by making an election. The testator or testatrix in the instant case conferred no right of election upon the intended donee.

Miss S Byng MA (Oxon), Barrister, Lincoln's Inn.8
(edited 1 month ago)

Quick Reply

Latest

Trending

Trending