Express Trust

Decent Essays
Determining the certainty of intention, subject and object of express trust

You write into your will, “I bequeath my assets to my son, John, and if John is under the age of 25, I direct that his inheritance shall be administered by my trustee until he attains the age of 25” These words likely constitutes an intention to create an express trust. You leave $3000 with your sister telling her; “I hope you used this money for the sole purpose of paying for my mother’s care.” Have you just created a trust or requested merely a moral obligation? Again, you are not a gambler, but went out on a shopping trip you noticed that a horse called “Equity” was running in the “Grand National” and you couldn’t resist placing $50 on it to win. In the event the horse came in at 100-1 and you returned home to your family with $5000 and a broad smile. When your wife demanded, “did you bought Jimmy’s birthday present, then you replied “ I’ve
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When the interests are not clearly delineated the trust fails and the trustee will hold a resulting trust in the testator’s estate. In Gomez et al v Gomez et al the testator bequeathed residue of real and personal estate to Margaret, Joyce and Yvonne in equal shares. Yvonne predeceased testator. The court held that by listing the name of the beneficiaries, the share of Yvonne as to residue of realty and personalty lapsed and passed on intestacy. Compare Gomez v Gomez to Boyce v Boyce where the testator devised two houses to Maria and Charlotte, with Maria predeceasing the testator. It was held by the court in that case that Charlotte had no beneficial interest in uncertainty of the interest each was to take. There was in this case a resulting trust in the testator estate. Gomez v Gomez raised some doubt about the Boyce ratio, as the court seemed to prioritize a reasonability test over necessity test for a clear declaration and certainty of subject
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