The Law of Equity and Trust: A case study of Roman;

“The preliminary point to fully comply with the prerequisite of a will execution starts at the testamentary capacity of the owner,” claims Amanda (2005, P 3). It is essential that Mr. Roma makes a distinction in this respect before he passes away between personal capability issues and other limiting circumstances on the basis of which the freedom of the property owner will be contested. The laws governing the succession of the decedent’s estate subject to the will can be used to establish capacity. This can only be the case if no other law can adequately address the issue at hand. Amanda (2005, P25), further asserts that to further avoid conflict of law, and the eroding the effect of incapacity. Mr. Roma, through his legal representative, should have; carefully studied the law of his domicile and the various clauses that supported his capacity, the United Kingdom constitution, the legal environment in which his business operates and the capital markets constitutional requirement regarding the sale and disposal of shares. In several legislation states, numerous discrepancies are witnessed of which Mr. Roma was fully aware. The capacity to carry out a viable business, for instance, is viewed as an event in a person’s general standing.

This universal capacity could only be limited to persons of sound mind but not to infants or to individuals who are prevented by a Court order not to transact on account of their mental status Amanda (2005, P25). This psychiatric conditions could be as a result of mental disease, uncharacteristic drunkenness, improvident, or indecision. Mr. Roma did not fall in the latter category but rather on the former. He, therefore, could transact on his behalf as testator. But according to Banyard (2005, p 61) It should be further noted that a person, nonetheless capable of discharging legal business in broad, but might yet be unapt to make a will.

The rulings do not always effect what they seem to deliver, nevertheless, when a testator possesses secure instrument in a common-law rule consequently, Banyard (2005, p 61) the procedures set by the legislature as regards to each of the devices must be thoroughly be verified. In looking into these courses of action, then the securest way is to have the instrument comply with specific legal provisions executed by comparatively observing the judicial procedures set out in all common-law influences Banyard (2005, p 61).

At common law, there exist two kinds of will, that’s the witnessed will. This intention is accessible through all the rules espoused in various common laws. There also exists, unwitnessed holographic will. The is the kind of will which Mr. Roma exposed us to. It only lives in some areas but not the rest. It’s had to administer since the testator cannot fully implement it, also give of its complexities. This kind of will should be avoided accordingly. It’s not practical in nature. Even though the legal environment varies from one region to another, only the witnessed will should be implemented in all the jurisdictions.

jurispru Banyard (2005, p 61) dence has been put forward by the judges in different legal settings. These settings has opened the debate as to the legality of the law of equity and trust. At the mention of the word equity, or fairness, the quick retort will be a harsh criticism in the endeavor to understand the applicable legal connotation. This creates a setting that is concurrent with the day to day lives of people, their foundation, or another legal setting as portrayed by lawyers in their legal research.

Majority of the issues raised by legal critics is based on trust. Trust in a legal definition, is a fiduciary association that enables one to hold a property on behalf of another. This creates a binding legal relationship between a settlor and an executor for the benefit of the benefactor.

The United Kingdom law defines a binding trust to comprise of a settlor, trustees or executors and legatees or beneficiaries. A settlor is the owner of the property whose ownership he would wish to handover to the trust. Trustees are a group of people who lawfully own the trust assets and manages it on behalf of the beneficiaries. The supremacies of the trustees are determined by common law and are well-defined by a trust arrangement. The benefactors are those who may directly benefit from the asset held under the trust arrangement. They may in turn, receive revenue or capital from the trust.

Under the law of equity and trust, the rule governing the executorship of shares and other instruments which Mr. Roma wants to dispose of must comply with certain common law requirements. In order register a share transfer, for instance, the testator should comply with the requirements of the legislations of his country of domicile as of the period of his death. This special application of the law is very unrealizable. However, since at the exact time of effecting the shares or any other movable instrument, a testator or the asset owner cannot exactly determine where he will be residing at that unknown moment of his demise. Luckily, the regulation was amended to provide for the jurisprudence; the specific location in which the instrument was effected. The region or country in which the testator was domiciled at the time the instrument was effected; the residence of the testator up to the time of his death; or specify the location of the assets in question.

“No specific form of countenance is essential for the formation of a trust, contrary, it can be met that a trust was indeed anticipated.” This declaration provides a blue print that there are no specific procedures that are needed to execute a trust.However, this might mislead the parties to a trust. Although equity or fairness is concerned with the intent rather than the method, sheer intentions in the cognizance of the owner of the asset is not just sufficient. For any valid trust to exist, the settlor should be able to create a trust by himself. He must genuinely transfer the said asset to a third party trustee or be able to affirm that he is the bonafide trustee of that particular estate or asset in question. Moreover, he must have an intention of creating a trust, and describe the trust asset succinctly and beneficiaries thereof. This kind of definition is known as the three certainties. The certainty of the subject matter, the certainty of the objects and the certainty of intent. For Instance, Mr. Roma appoints Gabby as an executor of his asset of pounds 1000,000 in HSBC to be put under the trust. He further goes ahead to specify that the football followers will be the real beneficiaries of the income or capital generated.

Thus Mr. Roma has already created a certainty of intention which merely states the intention by Mr. Roma to create a trust agreement whereby Gabby who is the trustee to hold his bank deposit of 1000,000 pounds, not for his own benefit but for the benefit of the funs.

It is now clear that when Mr. Roma created the trust by appointing Gabby to be the administrator and put it in writing and on the recommendation of an advocate, then his intention was actually present (Re Steele’s Will Trusts 1948). However, no precise custom of words is desirable for the formation of a trust. According to the law of the ’equitable maxim’. Equity or fairness establishes the intention at the expense of the procedure. It is, therefore, essential that the Courts to scrutinize the words used by Mr. Roma, and what responsibilities if any, Mr. Roma had intended to impose upon those fans who would be receiving the income or capital.

It is not expressly that Mr. Roma explicitly terms the agreement a trust, or implicitly declares himself a trustee. He should, however, through his conduct show this intent, and publicly use words which signifies his intention to the same effect (Richards v Delberidge 1874). For instance, Mr. Constance did not explicitly declare a trust for himself and his wife (Paul v Constance 1977), he instead guaranteed his spouse that they were equal heirs. “Moreover, their dual bingo prizes were all deposited into their joint account and all withdrawals were considered as their combined money. The Courts in their ruling, therefore, found from Mr. Constance’s words and conduct that he indeed envisioned a trust.

The Certainty of intention can also be referred to as certainty of words, even though it has been suggested that a trust may be inferred just from conduct. According to Re Kayford 1975 1A11ER604, Megarry J articulates with certainty of words ”the question is whether in material an adequate intent to create a trust has been established or not.“ According to the case, Kayford Ltd deposited some money belonging to a client into a different bank account.In the ruling, the Court held that the intention was ”useful“ even though the indication of an intention to create a trust was not definite. The Court also held that due to the continued discussions between the managing director of Kayford Ltd, the senior manager and, accountant such words were essential for reaching the supposition.

Contrary to the above, wherever the word ’trust’ is explicitly used, the detailed meaning may not depict a convincing evidence of the Trust - Such an agreement may temporarily mean something very diverse. According to [Stamp Duties Comr. (Queensland) v Jolliffe (1920)] for instance, the deed may comprise such wordings as ”On trust, with authority to appoint my nephew Ivan in such shares as in Footballiski Ltd. In his absolute terms and discrete terms, unless otherwise specified, the convincing evidence must therefore be quoted “along with the share certificates”.

But in clause one, Gabby even though shall in his absolute discretion decide, and in default of cash transfer to his friend Tony.“ Though acknowledging to be a trust, Gabby is under no obligation to offer the team money for their travel since the will did not expressly state so. However, in the will, a provision is made for the property to pass to Ivan together with the share certificates making him the true beneficiary of the said estate. This is therefore a power of appointment, and not a trust ( Re Leek (deceased) Darwen v Leek and others (1968) 1 A11 ER 793).

A will may at times, allow the property owner to detail precatory words such as stating a wish, belief, hope or a desire that the beneficiary of that particular asset to handle it in a certain way. For instance, in Re Adamms v Kensington Vestry 1884, a husband gave all his assets to his wife, ”in full assurance that the wife will dispose off the asset among all his children. In determining the case, the Court however, held that the wife may have been under ethical consideration to handle the said asset in a certain way that will benefit the children. But this wasn’t sufficient enough to form a solemn trust between the husband and herself. The Court further ruled that precatory words can however, still at times create trust. According to Corniskey v Bowring - Hanbury 1905, the words in full confidence were further used but this time round, it encompassed other clauses which were translated to mean trust. In determination, the Courts will scrutinize the whole document to confirm that the owner’s intention rather than just dismissing the trust simply because of a single clause.

There are supplementary procedures required for some kinds of trust assets to be validated, and for a trust to be binding, the title to the trust asset must be bestowed on the trustees, or the trust must be instituted. This could be achieved through delivery in case of chattels or household items or through land title deed for land related. If the inter party fails to properly constitute the trust, the named beneficiary will have no right and obligation to coerce the owner to faithfully transfer the asset. Thus equity or fairness does not support a helper.

The extreme case, is where the proposed benefactor has provided for consideration for the owner’s promise, in which case, the contract will be validated and thus allowing the beneficiary to sue for damages. In examining Mr. Roma’s case, the said trust had not been properly constituted, and in fact, there was no transfer of title Mr. Roma to Mr. Gabby as required by the trust law. This is attested when Gabby tried to register herself as the trustee of the shares at the Footballiski Ltd. The refusal by the Company was a clear indication that there was no title transfer to that effect. Gabby would not, therefore, coerce Mr. Roma to validate the trust unless he does it in good faith. Wherever a testamentary of trust parcel of land or personal property is alleged, the will through which it is contained should be in writing and effected following the section 9 subsection 3 of the Wills Act of 1837. Meaning that the property owner should sign the Will in the presence of two key witnesses. These two witnesses must also countersign in the presence of the testator or the property owner. However, according to Mr. Roma’s case, these provisions were never implemented. First, the trust was created by mere intention for consideration. It was never in writing and witnesses were never invited. No documents exchanged hands. Therefore, to detail into the provision of the Wills Act, the trust was never created. -Gabby, on the other side, is just a mere custodian and not the trustee of the estate.

Again, where a settlor desires to form an inter vivos trust of personality, the requirements are very minimal. In addition to the usual requirements for a valid trust. That is; capacity, and the three certainties, the settlor should look into any procedures that are required to transfer the asset to the trustees vividly. For instance, to efficiently assign shares then, the execution and delivery of a stock transfer form must be looked. Further, to efficiently create an inter vivo of trust for a parcel of land or of any equitable interest in property, in addition to the standard procedures of shifting land ownership, the trust declaration should be in writing and the persons creating the trust must also sign it. That’s the settlor or his legal representative [S.53 (1) (b) Law of Property Act 1925]. In the event that this procedure is not complied with, the Trustee would hold the land on trust for the Settlor rather than for the Beneficiary.

The exception is in the rule of Strong v Bird 1874. According to the rule, the settlor envisioned to create an instantaneous unrestricted allocation to the Trustees, the main intention of doing this was unaffected until the Settlor died. On his death, one of the trustees became his executor. In this situation, the asset mechanically vested on the personal representative of the settlor. This therefore, instituted trust.

It is at times believed that there’s no single form of manifestation necessary to create a valid trust if the intention is available. Clearly, this is not the valid truth.

There are procedures for making inter vivos land trusts, and testamentary trusts and if these are not monitored, the trust is most likely to fail unless deliberation has been provided or the rule in Strong V Bird 1874 will automatically apply, even if the trustee had the finest intents. Moreover, the procedure of wordings espoused in those procedures must be easily understood and any unambiguous removed, or they might not sum up to a trust. He continues to elaborate that a trust might be formed without necessarily using the word “trust” and this is absolutely correct in the sense that other words and conducts to that effect are satisfactory. However, the court does not just scrutinize the material of the words.

If the diction used do not meet the three thresholds of; certainties then, the individual declaring the trust do not have the ability to infer the trust, the trust so inferred will automatically fail. This is undoubtedly not the anticipated outcome and could not be the proprietor’s intention.

Works Cited

Amanda, Albon. Introducing Law through Research. New York: Open University Press, 2007. Print.

Banyard, Philip and Cara, Flanagan. The of Law Equity and Guidelines. New York: Routledge, 2005. Print.

Cardwell, Mike and Cara Flanagan. The Will AS: The Complete Companion. London: Nelson Thornes, 2005. Print.

Eysenck, Michael. Law of Trust for AS Level. London: Taylor and Francis, 2005. Print.