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Published: Fri, 02 Feb 2018

A trust is a relationship

Over centuries an infant en ventre sa mere has for certain purposes been considered a person. Long v Blackall 1797 was the only case where that lawfulness of making a child en ventre sa mere a life. There were strong grounds to contend that a child in the womb should in the eye of the law exist. In Thullusson, the court cites numerous older English authorities that establish that an unborn child is a legal person equal to that of human being who has already been born. In 1795, in Doe v Clarke [8] .The use entitlement was at issue, but Lord Chief Justice Eyre interpreted the words “living children” in a will to include an unborn human being. Lancashire v Lancashire and Goodtitle v Wood go upon the same principle that there was no difference between a born and unborn child [9] . In Ball v Smith [10] , a child en ventre sa mere when the intestate dies, once born, is entitled to take his or her share of the estate. Similarly in Ebbs v Smith [11] . The court ruled that this included a baby who was still in the womb at that time. In Occleston v Fullalove [12] , the court of Appeal in Chancery it was argued for the appellant that although the child in question was en ventre sa mere at the date of the will subject to the litigation, there was neither principle nor authority against such a child having a reputation of paternity. The court allowed the after birth to share with her sisters under the will. Not so long ago in Re Blech [13] ” did not mean only those children who were alive at the date of her death would be entitled. But infact meant all grandchildren, whenever born, would obtain an interest. Hence Kiran should be considered as a person who also has legal share under the will.

Johura has a holiday cottage and wants to give it to Faisel. Timpsons v Yerbury [14]  states that there are four ways to give a beneficial interest to another [15] . If she wants to remove herself from her interest she must complete the formalities of s52 LPA [16] . If it’s not in writing it is invalid and therefore the transfer fails.

Since Milroy v Lord [17] , courts have seemed to add the condition that although legal title to trust property remains vested in the settlor, an effort by the settlor to the trustee might be successful in equity even if not all the formalities necessary for a valid transfer have been complied with. This might be the case where the settlor has done everything in his power to part himself from the trust property. In such cases, it is therefore likely for a trust to be formed even though certain formalities have not been followed. . The Law of Property Act 1925 s 53(1)(b) states that [18] . The declaration itself need not be in writing, like Bannister v Bannister [19] . Therefore, the brother in-law could not evict the elderly lady. In the case of Rochefoucold v Boustead [20] , the COA held that an oral declaration could be allowed based on the equitable maxim.

Johura would need to complete a deed under s52. There are ways that equity will help. Re Rose [21]  states that if the settlor has made every effort to transfer the property to Faisel, then that will be sufficient. It could be like Pennington v Waine [22] where it would be unconscionable for the courts to reject that Johura wanted Faisel to have the property and it would appear that he is happy to have the cottage, as he actually needs it. 

Strong v Bird [23]  might apply if Faisel was her executor and Johura planned to make a gift, which continued until death. It could be perfected by a donatio mortis causa if she makes the gift in thought of immediate death, which is provisional on death and there is delivery of legal title. In Cain v Moon [24] three conditions must exist for a DMC to be valid. Equity will enforce a gift made by a person [25] She gave instructions, which was a bindery equitable obligation. She instructed Peter to hand the deeds to Faisel, which showed that she had to intentions of gifting him the cottage. Most likely Faisel will get the house

ii. Vital feature of donatio, there must be some act of handling over the goods to the trustee or has been given access to it (passing the keys to her son), the donars death perfects the gift as in Woodard v Woodard [26] .

iii. A gift made inter vivos by Johura to her daughter Nazia should be valid. The three certainties have been fulfilled. Likewise Re Lillingston [27] .


A trust created by writing which commences whilst the settlor is alive, is called a “living trust.” The property is placed in trust with a trustee and distribution takes place according to the terms of the trust possibly during the trustor’s lifetime and then upon the trustor’s death. Testamentary trust is created by the terms of a will and places some assets from the dead person’s estate in a trust to exist from the date of death and until fully distributed.

The Wills Act 1837 confirms [28] . The act extends to all testamentary dispositions or gifts where “a person makes a disposition of his property to take effect after his decease.

If formalities in making a Will are not followed then this testamentary document will not be valid and the deceased’s estate might likely be distributed under Intestacy Laws. The will must be in writing, the testator must sign the document, there must be two witnesses to attest to the testator’s signature and to the correct execution of the will and beneficiaries should not be witnesses. The testator must know and approve the contents of the will they must understand and accept the contents of the will and the testator must have testamentary capacity. Legal test for assessing whether a particular testator has testamentary capacity Banks v Goodfellows [29] . More recently in Re Estate of Martin Lavin, deceased sub nom Michael Barrett v Honora Bem & 5 ors [30] . The will was declared to be invalid and probate of the will was revoked, as the man was not in full mental capacity.

1.Courts consider the words used by the settlor. Precutory words such as confidence may or may not create a trust. In Adams and Kensington Vestry [31] , the will and surroundings were so unclear that no trust could have been intended by the precutory words used by the testator [32] . The question arose was whether a trust in favour of the children was created, it was held no trust was created and the wife acquired the property beneficially. In contrast, in Comiskey and Others v Bowring-Hanbury [33] , the will and surroundings circumstances were sufficiently clear for the court to conclude that a trust was intended by the testator. The will stated [34] . The intention of the testator was very clear. Johura has mentioned a similar statement to Adams and Kensington Vestry and therefore the courts may fail the disposition.

2. Johura has given a conditional gift to her daughter Nazia. In Re Steele’s Will Trusts, the testator intended a trust where her Will was drafted in similar terms to a precedent that created a trust. Mrs Adelaide Steele, by her Will provided as follows [35] . Charles died having made a will declaring [36] . The court held a trust was created in accordance with the intention of the testator; likewise Johura’s provision shall pass.

3. A power enables a person to act.

4. For a valid trust, “it is plain law that a trust must be for ascertainable beneficiaries” [37] . Before McPhail, one had to be capable to draw up a complete list of beneficiaries [38] . Lord Wilberforce expressed the new test of certainty [39] . This was the same test, which the courts had earlier applied to powers [40] . The COA in Re Badens Deed Trusts [41] held that the test was satisfied & was prepared to give a narrower definition of dependants. The term dependants were defined as a person who is wholly or partly dependent on the means of another. Therefore it does not matter whether the class is small or big. It would be for the trustees to be convinced that a given individual is a relative or dependant of an employee. Failure to convince the trustees means that the individual is not within the class and hence will not benefit from the rental income from Manton Properties.

5. In Boyce v Boyce [42] , Charlottle’s gift depended on Maria’s choice and therefore the gift failed as it was not possible to identify which two houses should be given to Charlottle. In that order it’s uncertain which houses Ayesha should keep, providing she does not die and which should be given to Meena. The trust fails for uncertainty of subject matter so therefore this disposition would most likely fail

6. In Pemsel’s case [43] Lord Macnaghten’s statement of what the courts should recognise as a charity was [44] .

7. The doctrine of Equity gives Kiran the right to be among the beneficiaries of her late mother’s property. Johura has precisely stated that ten percent of her shareholding to be given to her youngest child. But which child is she referring to, the one in her womb or Zafar? Its unclear to which shares are to be given, in the same way in Hunter v Moss the declaration did not state which 50 company shares were subject to the trust. In Re London Wine [45] , It was held that no trust has been created because it was impossible to identify which exact bottles of wine from the total stock actually belongs to the purchaser and therefore failed for uncertainty of object matter


Johura always mentioned the boat as “Ours”, equally in Ann Phyllis Rowe v Edward Prance [46] the claimant was entitled to succeed. The defendant used “our” in relation to the yacht on frequent occasions, intending it to be understood by the claimant as indicating her beneficial interest. Johura also referred the boat as “ours” The parties had a discussion concerning “security” in which the defendant indicated that the claimant security was her interest in the boat. Likewise Johura mentioned the boat was for her husband’s security for the future. Regular use of the word “our” indicated an intention that there was no distinction to be drawn by the defendant between himself and the claimant so far as concerned ownership of the yacht. Moreover the discussion about security indicated that the claimant was intended to have a substantial interest. The maxim “equality is equity” should be applied. Therefore Assad should be given the boat for his future security.

In contrast, Parrott v Parkin [47] the couple did not give any thought to whom will have the beneficial interest in the motor yacht.

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