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Equity & Trusts Group Assignment














Albeit there has never been an agreeable definition of a trust, Underhill describes it as “ an equitable obligation binding a person {a trustee} to deal with property over which he has control {trust property} for the benefit of persons {beneficiaries} of whom he himself may be one and any one of whom may enforce the obligation[1]. This paper argues that indeed, the testator (Ndinda’s husband) did create a trust relationship from his words. A trust relationship can be constructed from his words, despite their precatory nature.

The Nature of a Trust

Underhill defined a trust as an equitable obligation binding a person (who is called a trustee) to deal with property over which he has control (which is called trust property) for the benefit of persons (who are called beneficiaries) of whom he may himself be one and any one whom may enforce the obligation.[2] He outlines the four the four requirements for the creation of a trust as testator, trustee, beneficiaries and the property.

The testator is the person who makes a valid will on how their property will be disposed of after their death. In this case, the testator is the person who altered the given words to his wife.

The trustee is the person to whom the property is vested into by the testator. They have a fiduciary responsibility to take care of the property on behalf of a third party (beneficiary). They are obliged to manage the property in the exclusive interest of the beneficiaries.

The beneficiaries are the persons or entity entitled to benefit from the trust property. They are specified in the will and communicated to the trustee anytime during the lifetime of the testator otherwise the trustee can fail for lack of certainty of the object. The beneficiary should be certain or capable of being rendered.[3]

In this case the beneficiaries are the four children mentioned by the testator. The trust property is the interest the trustee holds for the beneficiaries. In this case the object and the interest on property that each object have been specified, as the intent in the words can be clearly constructed.

CERTAINITY OF INTENTION (Precatory Words and Discretionary Trusts)

Equity looks to the intent rather than the form and as such it is not imperative for the testator to specify in his/her will that he/she is creating a trust but it can be implied from his/her choice of words.

To determine whether or not a trust has been created, we must first establish 3 certainties as postulated by Lord Langdale MR in Knight v Knight[4], that is, the certainties of intention, subject matter and beneficiary.

In the above question, the testator expresses his intention to create a trust in favor of his children in the form of a house for each of them. It is also certain that the houses are the subject matter of the trust and the children the object of the trust or intended beneficiaries.

Precatory words are words used in a will or a trust by the testator or settler to express a wish or desire to have his/her property disposed of in a certain way or to have some other task undertaken, which does not necessarily impose a mandatory obligation upon anyone to carry out the wish.[5]They include words such as; it is my wish, in full confidence, desire etc.

In Re Hamilton[6], Lindsey L.J set out the rule on interpretation of precatory words that “you must take the will which you have to construe and see what it means and if you come to the conclusion that no trust was created you say so although previous judges have said the contrary on some wills more or less similar to what you have to construe”.

The decision in Re Hamilton[7] is in tandem with the decision in Comiskey v Bowring-Hanbury[8] where the words “in full confidence” were found to constitute a trust even though in an earlier decided case[9] a different precedent had been set.

Subject matter of a trust

Trust property.

These are assets that have been placed into a fiduciary relationship between a trustor and trustee for a beneficiary. The subject matter of a trust must be legally recognized property. It can be real or tangible personal property, such as land or a painting, or intangible property such as a patent or the right to enforce a debt (which is a chose in action). It can be legal or equitable property[10].

Trusts can be declared over all kinds of property, including intangible property such as covenants or debts. However, the subject matter must be clearly defined in the trust instrument[11].

In Palmer v Simmonds[12] a testatrix gave her residuary to Thomas Harrison “for his own use and benefit as I have full confidence in him, that if he should die without lawful issue he will leave the bulk of my said residuary estate unto B, C, D and E. (certain named persons)”. The issue was whether “the bulk of my residuary estate” constitutes certainty of subject matter. The trust failed for uncertainty[13].

Ndinda’s husband stated that their four children should get one house each from amongst his houses. The trust property being the houses, it can be inferred from his statement that the trust property was certain and therefore a trust was created ab initio. A trust is liable to fail unless the property covered by it is properly identified. The test applied is whether is so precise that the court may attach a court order on the property.[14] The subject matter of a trust can be certain even if the quantum of property is to be assessed by a trustee, provided the criteria applied by the trustee can be objectively assessed. For example, in Re Golay’s Wills Trust[15] the term “reasonable income” fell under this category.

In Hunter v Moss[16] the English Court of Appeal held that a trust is sufficiently certain if the trust properly consists of a percentage or fraction of fungible property (property which is interchangeable with property of the same description, such as coins or shares of the same class)[17].

Certainty of Objects

A trust will only be valid if it exists for the benefit of disclosed legal persons. The test for certainty of objects varies according to the type of the trust, that is, whether it is a fixed, discretionary trust or a mere gift subject to a condition or precedent[18].

There is a narrow test for a fixed trust than a discretionary one. In a fixed trust, the class must be capable of ascertainment, meaning the trustee must be able to draw a complete list of beneficiaries failure for which the trust will fail as was held in the case of IRC v Broadway Cottages Trust[19]. Conversely, the test to be applied in discretionary trust is same as the test of certainty of objects for a power, that is “given postulant test” or “is or is not” test was held by court in McPhail v Doulton[20], Lord Wilberforce went ahead to say “a trustee with a duty to distribute, particularly among a potentially very large class, would surely never require the preparation of a complete list of names, which anyhow would tell him little that he needs to know…” In our case scenario, the objects are well defined without fathom. This means the objects are certain. The expression “…our four children” is enough to exonerate the certainty.

Effect of uncertainty of objects

The trust may fail although the court has to in totality of the given circumstances verify possibility of a trust.[21]


It is therefore our view that indeed, there was a trust relationship formed by the testator. There exists certainty of the terms. Furthermore, the intent expressed great specificity as to the beneficiaries, who are the children, who should receive the property in the houses.

















Batten D, Gale Encyclopedia Of American Law (Gale 2011)

Bryan M and Vann V, Equity And Trusts In Australia (Cambridge University Press 2012)

Burmby C, ‘Trusts: The Three Certainties – The Student Lawyer’ (The Student Lawyer, 2013) <> accessed 20 March 2016

Hayton D, Underhill And Hayton Law Of Trusts And Trustees (LexisNexis 2010)

Ramjohn M, Unlocking Trusts 4Th Edition (Taylor and Francis 2013)

Comiskey v Bowring-Hanbury [1905] AC 84

Hunter v Moss [1994] 1 WLR 452

IRC V Broadway Cottages Trust [1955] Ch 678

Knight v Knight [1840] 49 ER 58

McPhail v Doulton [1971] AC 424

Oakley A, Parker And Mellows The Modern Law Of Trusts (2006)

Palmer v Simmonds [1854] 2 Drew 221

Re Adams v Keningston Vestry [1884] 27 Ch D 394

Re Golay’s Will Trusts (1965) 1 1 WLR 969

Re Hamilton (1895) 2 2 Ch 370



[1] A.J Oakley, Parker And Mellows The Modern Law Of Trusts (2006).

[2] David Hayton, Underhill And Hayton Law Of Trusts And Trustees (LexisNexis 2010).

[3] IRC V Broadway Cottages Trust [1955] Ch 678.

[4] Knight v Knight [1840] 49 ER 58.

[5] Donna Batten, Gale Encyclopedia Of American Law (Gale 2011).

[6] Re Hamilton (1895) 2 2 Ch 370.

[7] ibid

[8] Comiskey v Bowring-Hanbury [1905] AC 84.

[9] Re Adams v Keningston Vestry [1884] 27 Ch D 394.

[10] Mohamed Ramjohn, Unlocking Trusts 4Th Edition (Taylor and Francis 2013).

[11] Ibid

[12] Palmer v Simmonds [1854] 2 Drew 221

[13] Ibid

[14]  Mohamed Ramjohn, Unlocking Trusts 4Th Edition (Taylor and Francis 2013).

[15] Re Golay’s Will Trusts (1965) 1 1 WLR 969.

[16] Hunter v Moss [1994] 1 WLR 452.

[17] Mohamed Ramjohn, Unlocking Trusts 4Th Edition (Taylor and Francis 2013).

[18] Equity and trusts, J.B.

[19] IRC V Broadway Cottages Trust [1955] Ch 678.

[20] McPhail v Doulton [1971] AC 424.

[21] Mohamed Ramjohn, Unlocking Trusts 4Th Edition (Taylor and Francis 2013).


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