Advise Juliet, Mercutio, Romeo and Tybalt

In order to establish whether the different elements of Romeos estate have been adequately disposed of, the question of certainty must be assessed for each individual asset. A disposition takes place when the three certainties of a trust are satisfied [1] ; certainty of objects, beneficiary and intention [2] . It is clear that the sole beneficiary of the trust was intended to be Juliet and Mercutio and Tybalt would be appointed by Romeo as trustees to oversee and administer the dispositions in favour of Juliet. There are various issues regarding the certainty of Romeo’s attempts to dispose of his estate. The most effective way to establish what has been disposed of on Romeo’s death is to take each asset and analyse the effectiveness of the disposition.

The set of oral instructions which were given by Romeo preceding his death may be held valid should they be deemed sufficiently certain. Romeo instructed Mercutio and Tybalt to hold the Greenacre property and 5000 shares on trust for Juliet. Firstly, it is necessary to see whether the trust was effectively created before his death by analysing Romeo’s intention to create a trust. These instructions were given with the intention of effecting the disposition before his departure, evidence of Romeo’s seriousness is shown by procuring the transfer documents for the shares and the property. The court must establish whether Romeo was expressing his intention to create a testamentary disposition or whether it was a mere request [3] . In Re Alston [4] , it was held that the words "it is my express wish" was not sufficient to establish an intention to create a trust. This is also applicable to Romeo’s instruction to Mercutio to use his car to drive Juliet to the hospital; this is not sufficient for Mercutio to claim that it was Romeo’s intention to gift the Reliant Robin to him. Also, Romeo was intoxicated when he gave the car to Mercutio which would suggest that his decision lacks the required level of certainty to make a disposition and it would be inequitable to enforce allow Mercutio to be entitled to the car. Therefore, it is questionable whether Romeo’s intention to gift the house and shares before he died is sufficient to entitle Juliet to the assets upon his death, however generally it is accepted that the mere fact a deed was created demonstrates an intention to create a trust.

Secondly, it must be established whether the objects of the trust are sufficiently certain [5] . It is easy to establish Greenacre with sufficient certainty as the property on the title deeds. However, upon Romeo’s death it was discovered that he possessed 20,000 share certificates, this creates a difficulty as to which of the 20,000 shares Juliet is entitled to because Romeo only stipulated that 5000 should be put on trust for her. This situation would be resolved if out of the 20,000 share certificates which were found, only 5000 of them are shares in Capulet Industries Ltd. However, if this is not the case, the disposition of the shares to Juliet may fail because it would not be sufficiently certain what specific shares Juliet is entitled to. In Musoorie Bank v Raynor [6] the court held that the trust property was not sufficiently realised therefore the trust is not valid. However, there is less difficulty in establishing what proportion of the shares Juliet is entitled to because he specified before his death that he wished to place 5000 shares on trust to her in a private company not an unlimited company such as a plc, therefore individual share certificates will have been granted to each member and will be easily distinguishable.

The courts would look at enforcing a constructive trust in order for Juliet to be entitled to the gifts that Romeo wished to put into a trust for her before his death, otherwise they would fall into the residuary of the estate which Benvolio is entitled to. A constructive trust is a tool imposed by equity to ensure the beneficial owner who has established a right in the property is not deprived this right by the legal owner; therefore despite Benvolio being entitled to the residuary of the estate by his will, Juliet may be entitled to the property and shares as a constructive trustee [7] . There are various types of constructive trusts and different elements which need to be fulfilled for each type. The two requirements for a common intention constructive trust to be imposed; a common intention by both parties for an interest to be imposed, secondly the third party needs to demonstrate an element of reliance on the intention to gain an interest in the property [8] . In Green v Green [9] the existence of a domestic relationship between the two parties and the assurance that was given of the beneficial interest existing in the property created a constructive trust in favour of the wife despite not having any legal interest in the property. In this case, it is not clear from the facts whether there was a common intention by Romeo and Juliet that she would be entitled to the property and the shares. It is not even clear whether she is aware of Romeo’s intention to create a trust. The common intention constructive trust is usually used for the situation where one spouse is the legal owner of the property however due to express words or implications the other spouse has developed a beneficial ownership of part of the property [10] . However, in more recent cases, the courts have shifted their focus from the establishment of an arrangement to the requirement of reliance by the party seeking the beneficial interest in the property. In Green v Green [11] the 'detriment' which was established in order to fulfill the trust requirements was the fact that she stayed within the family residence and helped raise the children within the family home. It is not possible to establish a detriment to Juliet if she was not entitled to the property because it is not clear what her relationship with Romeo is and whether she was relying on any eventual entitlement. Therefore, Juliet will have to establish, with the help of evidential support from Mercutio and Tybalt, that it was Romeo’s express and clear intention for a trust to be formed with her as the sole beneficiary. The lengths that Romeo went to in order to create the trust before his death should demonstrate the requisite intention to dispose of his assets and create a trust in Juliet’s favour.

It is also important for Juliet to be entitled to the contents of the trust because if the trust is held to be void, the shares and Greenacre will fall into the residuary of the estate. Romeo did not die intestate, therefore his will stipulates his testamentary intentions which is for Benvolio to be entitled to the residuary. Furthermore, Juliet would be prevented from benefitting from any inheritance because she is a witness to the will. Also, Mercutio and Tybalt are appointed executors of the will which means that they will be allocated the responsibility to ensure that the residuary of the estate is granted to Benvolio. This directly conflicts with their fiduciary duties as trustees for the trust which may have been established in Juliets favour. As trustees Mercutio and Tybalt have a responsibility to act in the best interests for Juliet who is the main beneficiary, these two separate fiduciary duties clearly conflict therefore they may have to be best advised to not adopt the roles as executors.

In conclusion, it is important to establish the certainty of intention and objects of the trust which Romeo attempted to create before his death. Should the court decide that sufficient intention existed on Romeo’s behalf and the share certificates can be sufficiently allocated to Juliet; the court will impose a trust in favour of Juliet reflecting equitable principles of fairness and entitlement. Romeo’s car is likely to fall within the residuary of the estate because it is not sufficiently certain that it was his intention to grant the car to Mercutio. The residuary of the estate will be established and disposed of in favour of Benvolio by the executors, Mercutio and Tybalt, who will have to consider their roles and fiduciary obligations towards Juliet and Romeo before they proceed with the administration.