EQUITY AND TRUSTS LAW

Equity and Trusts Law

Equity and Trusts Law

Referring to the scenario the legacies left by Amara will have to be distributed as per her conditions instructed in her Will. Phill and Ben will have to make sure that Edward provides all valuables as dictated in Amara's will to faciliate and benefit Felicity Amara and Edward's daughter. Two hundred of Amara's shares in Camford plc and three of her first edition books on trust for, Stephen. In addition a share to Esther the sum of £20,000 on Esther's discretion to the most deserving student of Amara. However, If she is unwilling to do this, then the money is to go to the University Library. The remainder to Phill and Ben as per the share in the Will. Depicting this situation we can liken it to the statement of Lord Viscount Sumner said in Blackwell v Blackwell [1929] that once the trustee agrees to the testator's intentions “the proposed donee encourages him to bequeath the money in the faith that his intentions will be carried out.” (Zander, 2007 Pp. 66.-69)

The two types of secret trusts share some rules such that the secret trustee must accept the trust. This acceptance can be express or implied; Wallgrave v Tebbs [1972]. The secret trustee must be under a legally binding obligation, a purely moral one is inadequate; McCormack v Grogan.

Some rules the secret trusts do not share and this is indicative of their different natures. Most importantly for a fully secret trust the terms of the trust may be communicated to the secret trustee at any time up to the point of the testator's death whereas for a half secret trust this must be done by the time the will is made. If communication does not happen before the testator dies the secret trustee retains the property for himself. Communication is still effective even if it is done by a sealed envelope which contains the details of the trust; re Keen [1937]. Where the secret trustee dies before the testator the outcome depends on whether it was a secret trust or a half secret one. For the fully secret trust as in Re Maddock [1902] the trust fails. This occurs because on the face of the will there is no trust just a beneficiary (who was intended to be the secret trustee) and the rule is such that the beneficiary must survive a testator. However the contrary view was given in Blackwell v Blackwell [1929]. In a half secret trust, where the trustee pre-deceases the testator, the existence of the trust is already apparent form the face of the will. Equity steps in here since “equity will not allow a trust to fail for want of a trustee”; Re Smirthwaite (1861).

To be valid a will must strictly comply with formalities. According to s.9 Wills Act 1837 a will must be in writing, it must be signed in the presence of two independent witnesses who also must ...