Paragraph 1 Flashcards
Milroy v Lord (1862)
It is important that the settlor intends to create a trust as opposed to creating merely a gift or some other device, such as a gift (Milroy v Lord (1862)).
How do we determine whether the settlor has intended to impose a trust?
In order to determine this, we must assess whether the ‘trust’ imposes an obligation on the trustee.
Glenda using the word “must”
In this provision of the Will, Glenda uses the word “must” which is an example of an imperative word.
Wright v Atkyns (1823)
In Wright v Atkyns (1823) it was held that “the words must be imperative” to establish an intention to impose an obligation on the trustee.
Re Kayford (1975)
Furthermore, in Re Kayford (1975) it was held that there is no need for the word ‘trust’ to be used, which is apparent within this provision. This is also confirmed by Tito v Waddell (1977).
Did Glenda have intention?
Therefore, it is clear that Glenda had the intention to create a trust by declaring that Mohammed and Archibold must ensure that Florence has a reasonable standard of living from the income of the wool shares.
Subject of the trust? (wool shares)
The subject of the trust can be identified as the income from the wool shares, however, it must be assessed whether this constitutes as a ‘reasonable standard of living’ for the beneficiary (Florence). If there is no certainty of subject matter then the trust will not be valid (Boyce v Boyce (1849)).
‘reasonable standard of living’
In order to establish what constitutes as a ‘reasonable standard of living’ for subject matter, the objective yard stick test would be used to identify what is a reasonable / sufficient income for the beneficiary (Florence) (Re Golay’s WT (1965)).
reaffirms maxim
This also reaffirms the equitable maxim “equity looks to intent rather than form” as equity will try and save a trust, i.e. by using the objective yard stick, if it can.
‘reasonable standard of living’ application
On application, we can assume that the income from the shares would be sufficient enough to warrant a ‘reasonable standard of living’ for Florence and the subject is identifiable, therefore, there is certainty of subject matter within this provision.
Object - void?
A trust will be void if the ‘objects’ (beneficiaries) of that trust are uncertain. It is essential that the trustees know the identity of the beneficiaries so that they can fulfil their obligations.
Type of trust?
In order to determine the object of the trust, the type of trust must first be identified. This is an example of a fixed trust as the provision requires that the property be held for a fixed number of identified beneficiaries (Florence) of which equity will be shared equally (which is irrelevant as there is only one beneficiary).
Group of beneficiaries?
If there were a group of beneficiaries then in order to determine certainty of object under a fixed trust, it would be necessary for the trustees to be able to compile a complete list of the beneficiaries (IRC v Broadway Cottages (1955)), known as the fixed list test, of which the group of beneficiaries are ascertainable. However, as the provision only identifies Florence, there is no need for this.
Is there certainty of object?
It is clear from this provision that the object in the trust is Florence as she is the only named beneficiary of the income from the shares, therefore there is certainty of object.
Conclusion
In conclusion, this provision of Glenda’s will will constitute as a valid trust as certainty of intention, subject and object have been established. Therefore, Mohammed and Archibold have a duty as the trustees to uphold this trust for the benefit of Florence.
