Firstly, whole needs to be considered. The requirements

Firstly, the validity of the will as a whole needs to be
considered. The requirements for a will to be valid are outlined in section 9
of the Wills Act 18371,
which states that a will needs to be in writing, signed by the testator with intent
to give effect to the will, in the presence of two witnesses who must also sign
the will. It can be seen that these criteria are satisfied at the bottom of the
will, which shows the declaration by the two witnesses and Lucy’s signature.
Therefore the initial statement which revokes all former wills and codicils is
valid and any correctly formed dispositions within the will are also able to be
valid.  

Article 2 of Lucy’s will is in regards to a half secret trust,
intending for Fahari to act as the trustee. In order for a half secret trust to
be valid, there must firstly be evidenced intention to create the trust before
or at the time the will is signed as outlined in in Kasperbaur v Griffith2,
in which it was held that the trust was invalid due to lack of certainty of
intention. In the present case, Lucy’s inclusion of the trust in her will
demonstrates intent as outlined in Marley v Rawlings3.There
must have been communication of the existence of the trust to the trustee as
outlined in Wallgrave v Tebbs4 before
or at the time that the will is formed. It can be assumed that Lucy must have
communicated her intentions to Fahari as had she not asked Fahari to be a
trustee, Fahari would not have written to Lucy revoking her trusteeship. Fahari
could not have revoked something that she was not aware of holding in the first
place. Finally there must be acceptance of the role of trustee
contemporaneously with the will being formed as outlined in Blackwell v Blackwell5.
In the present case, Fahari revoked her acceptance in writing to Lucy, however
Lucy did not amend her will. The painting of the North Norfolk coast would
therefore be held on resulting trust as part of her estate which would be
distributed based on intestacy laws to Lucy’s next of kin, which in this case
would be her three siblings. As the painting is tangible property which can be
divided between three people, the value of the painting would be equally
distributed instead.

We Will Write a Custom Essay Specifically
For You For Only $13.90/page!


order now

The validity of Lucy’s disposition in relation to Astrid will depend
on whether the fully secret trust for specific chattels to Astrid Lees can be
executed. In order for this trust to be valid there has to be clear intention
to create a secret trust and it must be evidenced orally or in writing. The
intention and instruction must be specific, or the trust will not be valid and
the property will be taken as an absolute gift as seen in Kasperbaur v Griffith6.
The intention must be communicated to the trustee before the testator’s death
and information about beneficiaries can be enclosed in a sealed envelope as
outlined in the case of Re Keen 7.
The present case satisfies the above requirement, as Lucy evidenced her
intentions in writing both to the trustee and the beneficiary before her death,
thereby also reducing the scope for fraud by the trustee, which is one of the dangers
of a fully secret trust. Acceptance of the trustee position must occur either
expressly or impliedly as outlined in McCormick
v Grogan8.  Astrid’s text message stating “Of course I
will do whatever you have requested” is certain enough to display clear
willingness to accept the trustee position, which was never revoked and so was
in operation upon Lucy’s death.

In order for the trust to be valid, it must also satisfy the requirement
of the three certainties, firstly certainty of intention, “give the property
that I leave to you as a gift in my will to the person whose details are in the
envelope”. It is clear that Lucy wants Astrid to hold the property that she
receives as a gift on trust for the beneficiary, whose identity is undisclosed,
until she can then give the property to the beneficiary. There is clear
certainty of subject matter, as it is stated in the will that Astrid is to
receive Lucy’s personal chattels “except those which are the subject of
specific gifts in this Will”. Lucy is also able to include “personal chattels
used partly for business purposes”, because S.55 (1) (x)9
states that the personal chattels “used at the
death of the intestate solely or mainly for business purposes” are excluded
from the definition of personal chattels, however Lucy defined her property as
“partly for business purposes”, not “mainly for business purposes”, therefore
the disposition is valid. Finally there is certainty of objects, as Lucy
states the beneficiaries shall be detailed in a sealed envelope and the
envelope contains the full name of the beneficiary which is clear and certain.

Article 5 of Lucy’s will concerns the trust she created for her
siblings to benefit from any residue of her estate. In order for the trust to
be valid, it needs to meet the three certainties as outlined in Knight v Knight10  In the present case, it meets the requirement
of certainty of intention applied in McPhail
v Doulton11,
as it is clear from the wording used that Lucy intended to create a trust as
she is giving the property to the trustees to give to her siblings. The
trustees are holding the property as a lifetime trust for Lucy’s siblings and
after their death, the remainder to be given to the Tate Modern museum. There
is also certainty of objects as the courts are able to determine who is and who
isn’t Lucy’s sibling. At the time the trust will be executed, there is
certainty of subject matter, as what remains of the residue of the estate, once
any payment of funeral and testamentary expenses and debts has been completed
can be calculated. However, there is an issue of beneficial share, as Lucy has
not created a discretionary trust in which it is up to the trustees’ discretion
how much property to allocate to each beneficiary. However, the equitable maxim
of “equity is equality” will prevail, so it is likely that the courts will
allocate the property in equal shares amongst the siblings as the property is
money and all money is identical so easy to divide into three equal shares.

Overall, with the exception of the half secret trust
intended for Fahari to act as trustee which would be held on resulting trust,
Lucy’s dispositions are valid for the reasons outlined above and Astrid and
Fahari have a fiduciary duty to execute Lucy’s wishes.

1
Wills Act 1837

2 2000 WTLR 333

3 2014
UKSC 2

4 (1855) 2 K & J 313

5 1929 UKHL 1, AC 318

6 2000
WTLR 333

7  1937 1
Ch. 236

8 1869 LR 4 HL 82

9
Administration of Estates Act 1925

10 1840 49 ER 58

11
1971 AC 424, 450

x

Hi!
I'm Johnny!

Would you like to get a custom essay? How about receiving a customized one?

Check it out