By Iwobi, Andrew Iwobi
A part of the Cavendish "Essential" that is designed to supply beneficial revision aids for the hard-pressed pupil. no longer meant as substitutes for extra special treatises, they provide succinct insurance of the subject handy.
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Additional resources for Essential Trusts, 3rd Edition (Essential Series)
There might nevertheless be a FST, provided the communication referred to in the will was framed in sufficiently imperative terms to impose a trust (see Re Spencer’s Will (1887)). Conditions for the enforcement of the FST As explained by Brightman J in Ottaway v Norman (1972), three conditions must be present before a fully secret trust will be upheld, namely: intention, communication and acceptance. Intention T must employ words which evince a clear intention on his part to impose a binding obligation on L to hold the property left to him on trust for B.
The relevance of the will in the present connection is that it operates to vest the property in the legatee/devisee, thereby enabling the beneficiary to enforce it against him. Two notable cases serve to illustrate how far the courts are prepared to go in their acceptance of the dehors theory, namely: • Re Young (1951), which decided that despite s 15 of the WA (which precludes a witness to a will from taking a benefit under it) a beneficiary under a secret trust would not lose his benefit simply because he witnessed the testator’s will.
The issue at stake is whether the communication of the trust must be evidenced in writing in accordance with s 53(1)(b) of the LPA 1925. Such writing will be needed if the trust is express, but not if it is constructive. The position has not yet been decisively resolved by the courts. However, it has been held in Re Baillie (1886) that a HST was unenforceable in the absence of written evidence. The implication of this is that the court regarded such a trust as an express trust which had to comply with the statutory formalities.
Essential Trusts, 3rd Edition (Essential Series) by Iwobi, Andrew Iwobi