Paragraph 3 Flashcards
Intention
Glenda’s intention within this provision must be identified to determine the validity of the trust (Milroy v Lord)
‘must be held’
• Within the provision, Glenda uses the term ‘must be held’ which is imperative, imposing an obligation on Mohammed and Archibold, her trustees (Wright v Atkyns (1823)).
Certainty of intention?
Therefore, certainty of intention has been established.
Subject
Next, certainty of subject must be established. We know that the subject is ‘two of my five Michelangelo paintings’ which Brenda is able to choose from. However, it must also be defined how much of the property is assigned to each beneficiary.
Brenda has died?
As Brenda has died we are unable to determine which paintings she would have chosen as per the provisions request, meaning that the interest of the beneficiary cannot be defined (Boyce v Boyce (1849)).
Certainty of subject matter?
Therefore, the subject matter of this provision is uncertain and thus the trust fails.
Result of failure?
As a result of this failure, the Michelangelo paintings will return back to the settlor (or the settlor’s estate in this case as Glenda has died) on a Category 2 resulting trust. This is because the Mohammed and Archibold (the trustees) know their obligations but cannot fulfil them.
Irrelevant - type of trust?
Although irrelevant as the trust has failed, if it were to have been validated it would be an example of a fixed trust as the provision requires that the property, the Michelangelo paintings, be held by the trustees, Mohammed and Archibald, for the benefit of a fixed number of identified beneficiaries, Brenda and Adam.
Certainty of object?
As Brenda and Adam are named it would be possible to compile a complete fixed list of the beneficiaries (IRC v Broadway Cottages (1955)) and therefore, there is certainty of object.
