Equity and trusts Degree Case Study Example | Topics and Well Written Essays - 2000 words

Equity and trusts Degree - Case Study Example This is so because, even though equity looks at intent and not form, equity is also bound to take cognizance of the express will of the Parliament. We shall now turn our attention to the provisions of the will made by James: a. 100 000 to my beloved sister - Emily, in absolute confidence that she will use a decent amount to look after my step daughter, Mary: James is entitled to leave as much money as he wills to his sister or on trust for his step daughter. The problem we have in the scenario at hand is that of the three certainties i.e. whether what James stated amounts to a declaration of trust over the 100,000 The second is whether the amount left for Mary is identifiable The issue of objects does not seem problematic as Mary is clearly the intended beneficiary. The last problem that we will deal with is what would happen to the 100,000 if no trust is to be found. To consider whether James has created a valid trust or gave a power of appointment. In Re Weekes' Settlement (1897) a testatrix left property to her husband with a 'power to dispose of all such property by will amongst our children in accordance with the power granted to him as regards the other property which I have under my marriage settlements.' The court decided that the document did not create a trust for the children of the testatrix but a mere power of appointment for the husband to distribute the money if he willed. In the will left by James, an analogy could easily be drawn with the facts in Re Weekes' Settlement (1897). He has left the 100,000 to his sister with a power of appointment that she could use a decent amount of the money for the care of James's step daughter. There are also cases where a relatively clearer intention was found like in Mussorie Bank Ltd v Reynor (1882), here also the question was whether the testator actually wanted to create a trust. However, in light of cases like Lambe v Eames (1871) where the Court of Appeal refused to hold a valid trust because the testator left a estate to his widow stating 'to be at her disposal in any way she may think best, for the benefit of herself and her family' seems to be closest to facts at hand. The only problem in concluding that the money was an absolute gift to Emily is the case of Comiskey v Bowring-Hanbury (1905), where a trust was held on the words 'in full confidence that', in our case, similar words are used. In Comiskey however, the testator's words were construed in such a way also because they were followed by an instruction that if the wife died without devising the property to her nieces then the property will be divided equally amongst them. James uses similar words, 'in absolute confidence' but one may be bound to incline towards earlier authorities as there are no further instructions. This indicates two things, first, that