The deed should highlight the property concerned, te trustee who is to be appointed and who is to be the intended beneficiaries of that trust. Dfficulties arise where there is no deed as there is no evidence in writing to identify the intended beneficiaries6 or to prove the intention of the settlor to create a trust. I is usual practice for the settlor to have the details of the trust included in their will so that the beneficiaries know of their entitlement. Te beneficiaries are best placed to trustees manage the trust as the settlor intended and they also possess the necessary locus standi to bring an action in the court if the trustee breaches the trust.
Wen the courts are considering the three certainties they need to be able to establish that the trust can be enforced and controlled. I Re Astor’s Settlement Roxburgh LJ made it clear that a trust cannot be deemed to be valid if it cannot be enforced or controlled. Crtainty of intention requires the trustees to prove the intention of the the will was made7.
I some cases the wording of the will is such that an implication can be reached as to the intention of the testator. Te courts also demand clarity in respect of the identification of trust items. Te aim of this is to remove any ambiguity and therefore to enable the beneficiary to defend against another’ claim for a share of the estate. I the beneficiaries are not easily identifiable the courts have frequently taken the view that as there is no one with locus to the terms of the trust are adhered to the trust must fail8.
A it is important for the beneficiaries to be easily identifiable persons making a will should ensure that the wording of the will is not too vague9. Oer the years there have been many cases that have been used to set a precedent by which future cases have been decided. Te case of McPhail v Doulton10 is widely accepted as an authority in relation to the validity of a trust where it is uncertain whether individual can regarded as a member of a designated class.
I was stated by Lord Reid in this case thatRe Baden’s Trust (No 2) 11 subsequently declared the trust to be valid and made it the responsibility of the beneficiaries to provide proof that they were members of a certain group. IC v Broadway Cottages Trust12 challenged the certainty of objects and made it a requirement that the range of objects in question had. ..
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