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Pages 8 (2008 words)
This assignment looks at the provisions of the will of Lady Penelope and advises the potential beneficiaries of each provision of their legal position. I will deal with each provision of the will separately.
It seems clear that the testator here is expressly stating her intention to create a trust.
As was stated in Knight v Knight2 by Lord Langdale MR, there are three certainties that must be present in order to constitute a valid express trust, they are certainty of words, certainty of subject matter and certainty of objects.3
The certainty of words requirement was described in Re Kayford Ltd.4 as being akin to a certainty of intention. The intention is to impose a mandatory obligation on the trustees of how the trust property is to be dealt with. As was stated in Banks v Goodfellow5 the testator does not need to have the understanding of a lawyer as to the contents of the document but a clear intention to trust, must be present.
The certainty of subject matter relates to the trust property. The trust property must be clearly defined and identified. Otherwise the trust must fail as who is to decide which assets are to form the basis of the trust. The case law has established that uncertainty as to the subject matter can either be conceptual or evidential. By conceptual uncertainty is meant that it is impossible to ascertain what the intention of the testator was. For example, in Palmer v Simmonds6 Kindersley V-C said that a trust could not be created, as a 'definite, clear and certain part' of the estate had not been identified. ...
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