Law of Trust

Question A

The will must get completed correctly to be valid under the law. A will disposes of the
deceased's estate and therefore must comp;y with the requirements stipulated under the Wills
SAct 1837. The maker of the will must be aged 18 years and above. The will must be attested to,
and the witnesses must acknowledge having seen the testator sign and that it is the maker of the
will that appended the signature to create a valid document. The will must also have gotten
executed without any fraud, undue influence, or mistake. The law requires that it must be in
writing for a will to be turned valid. The testator must have signed it in two witnesses who must
also sign. 1 the specifications are meant to ensure that wills are created to provide a clear record of
the testator's wishes after death and comp;y with statutes. Scale trusts are therefore not validly
created.
To properly advise Paulina on the validity of the will and how she can effectively execute
it, the first thing that will get analyzed is the intention. The testator, in making the will left some
instructions that were to be executed upon his death. There must be certainty of intention for a
will to be validated. 2 In the celebrated case of Banks v Goodfellow, 3 the court held that in the
exercise of making a will, the settlor should understand the act itself and the effects. That means
that the testator should understand the extent of the property that is being disposed of. In
interpreting, then will the words of the will must be given their natural and ordinary meaning, the
factors that were within the testator's knowledge ignoring the subjective evidence about the
testator's intention. 4

1 Section 9 Wills Act
2 Kasperbauer v Griffiths [2000] WTLR 333 
3 Banks v Goodfellow [1861-73] All E.R. Rep 47 

The first disposition is flat in Brixton, which Tim gave to Joseph with the statement that
he trusted that he would follow his instructions. Tim, later on, delivered the letter to Joseph,
which had instructions on how he was to deal with the property. The letter evidenced that he
would take the property in trust for the deceased childhood sweetheart Rachael. In enforcing
secret trust, the equity should not in any way contradict the specifications of section 9 of the
Wills Act 1837. The testator did not wish his intentions to be known on who he was to leave the
apartment to and therefore secretly made a trust to ensure that Joseph would take the property
and transfer the same to the third party. A secret trust is an exception to the application of section
9. To ensure its valid, there must be an intention to create trust. Communication must be made to
the trustee that the gift was meant to be held in trust for the secret beneficiary, and in reliance of
that acceptance, the testator goes ahead and makes the will. Joseph was uncomfortable about his
request will not mean that it would be unenforceable. Tim died with the implication that Tim, his
longtime trusted friend, would help him fulfill his wishes. Therefore the first instructions are
valid and enforceable because the conditions for setting up a secret trust have been fully
satisfied. Tim communicated his intention to Joseph through the secret envelope where he named
the person to be given the property.
On the issue of the money left to his executor to be distributed in equal shares to
survivors of Tim's graduation class at college. It would be hard to enforce the same because it
was not specific to who would get the same. Tim had graduated in 1988 together with other 100
pupils, but the records as to the names of the pupils had been destroyed, and therefore there is a

4 Marley v Rawlins [2014] UKSC 2
non-conclusive record of who was in the class. In interpreting the will, the court will use the
armchair principle set out in Allgood v Blake's case. 5 The court will put itself into the testator's
position to check whether the intention was evidenced by words and the facts or circumstances
of the case. 6 Therefore, Paulina would not be expected to enforce the will on that aspect because
there are no records to enable the distribution. Paulina would be to dispose of the amount as she
wished.
The third is the book collection of the rare first editions bequeathed to Sarah. The bequest
would be enforceable, and Paulina would have to analyze the rare first collection, see the most
valuable ones, and give them to Sarah. On the issue of the money left to the executor to appoint
any of his friends, the executor would be to nominate any of the frien


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