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Legal Evaluation of Barry Delaney’s Will

  • 9 Pages
  • Published On: 11-12-2023

Johnson and Gove

37 Fore Street

Highfield

Oldingham

Surrey

OL6 7BY

Ms. Cheney Delaney

8 Northtown Avenue

Blankstone

Hertfordshire

HE8 6TU

Date: 03 April 2021

Ref: A32291/21

Dear Ms. Delaney Matter: Barry Delaney’s Will

I am John Smith. Thank you for taking the time to send us the relevant documents and information regarding Mr. Barry Delaney’s Will. We are writing this letter to help you identify and understand the components of what constitute a valid trust in order to enable you make informed decision of potential actions in case of breaches in the administration of the trusts in question.

Issues

We have identified the following legal issues: i) whether or not the trusts created under the Will made by Barry Delaney are valid trusts; ii) whether or not there is a constructive trust on behalf of Septimus; iii) whether or not the Will even if it used a DIY kit is a valid Will; and iv) whether or not the beneficiaries can enforce their rights against the trustees, Parveen Kohli and Jeremy Bristow, to in regard to the breach of the trust.

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Summary of Advice
First issue - valid trusts

A trust must pass the three certainties tests in order to determine whether or not a valid private express trust is created. For the first test, the words used by Mr. Barry Delaney must be construed as an imperative. For the second test, the subject of the wish or recommendation of Mr. Barry Delaney must be certain. For the third test, the objects or beneficiaries of the wish or recommendation of Mr. Barry Delaney must be certain.

  1. Knight v Knight (1840) 49 ER 58, (1840) 3 Beav 148; Gary Watt, Trusts and Equity (9th ed., Oxford University Press 2020) 79.
  2. Knight v Knight (1840) 49 ER 58, (1840) 3 Beav 148.

First test. A mere use of ‘trust’ in a statement does not necessarily signify the intent to create a trust and cannot be enforced. Precatory words are not sufficient to imposing any obligation as to the application of a trust property. A trust cannot be enforced if the words do not clearly direct the disposal of the property. For example, language such as ‘to be at her disposal in any way she may think best, for the benefit of herself and her family’ while leaving the estate is not sufficient to create a valid trust.

In this current case, it is only the first two trusts that pass the first test of certainty of intention. Regarding trust of ‘The Willows’, the language of Mr. Delaney is clear as to the intention to leave the Willows and the amount of £20,000 to the Parveen Kohli and Jeremy Bristow to be held on trust. Similarly, regarding the amount of £50,000, the language in the Will ‘leave the sum of £50,000 cash to Dullby Tiddlywinks Club’ signifies the intent of Mr Delaney to create a trust. It imposes an obligation on the Parveen Kohli and Jeremy Bristow to dispose the said amount in the manner stipulated in the Will.

The third and the fourth trusts do not pass the certainty of intention test. The regarding the third matter does not show certainty of Mr. Delaney when he left the amount to Parveen Kohli and Jeremy Bristow as it did not specify how the net income from the amount was to be generated. The use of the language ‘whatever manner they see fit’ fails to provide clear or sufficient direction as to the disposal of the case amount. In regard to the fourth matter regarding the remainder of the estate, the language used ‘to further the cause of Jediism’ is precatory in nature and not sufficient to impose a clear obligation on Parveen Kohli and Jeremy Bristow to apply the remainder of Mr. Delaney’s estate.

Second test. The subject of the wish or recommendation of Mr. Barry Delaney must be certain. Mr. Barry Delaney must have had been certain about the property to be held on trust and about the beneficial interest so as to determine the object of trust.

Since it is the first two trusts that have met the first test, there is no necessity to verify whether or the third and fourth trusts meet the second test and the third tests. However, for your information, we will provide the necessary information here for all the four trusts. The first and the second trusts meet the second certainty test.

In regard to the Willows and the sum of £20,000, the language used in the Will identifies the subject or the property to be held on trust. The first trust passes the second test. In regard to the second trust, the Will identifies the subject, which is amount of £50,000 cash amount, to be held on trust. Thus, the second trust passes the second test. In regard to the third trust, it is the sum of £80,000 that is the subject to be held on trust. This trust also passes the second test. In regard to the fourth trust, the Will uses the language, ‘remainder of my estate’ which does not identify the property to be held on trust and hence it fails the second test.

  1. Re Diggles (1888) 39 Ch D 253.
  2. Gary Watt, Trusts and Equity (9th ed., Oxford University Press 2020) 80.
  3. Ibid, 82; Re Williams (1897) 2 Ch 12.
  4. Lambe v Eames (1870) L. R. 10 Eq. 267.
  5. Gary Watt, Trusts and Equity (9th ed., Oxford University Press 2020) 80.
  6. Knight v Knight (1840) 49 ER 58, (1840) 3 Beav 148.
  7. Iain McDonald and Anne Street, Concentrate Equity and Trusts (4th ed., Oxford University Press 2014), 28.

Third test. The beneficial interest must be clear. Thus, if the Will of Mr. Barry Delaney did not identify the beneficial interest although it identified the property, there is no trust. There must be certainties about the beneficiaries. This test is particularly essential in a fixed trust that identifies all beneficiaries to enable carrying out the instructions required to form the trust. Further, instruction given by Mr. Barry Delaney to Parveen Kohli and Jeremy Bristow should be sufficient for them to carry out the terms of the testator. Thus, if there is no yardstick to determine a reasonable payment, which Mr. Barry Delaney wished to give to the beneficiary by selling a property in question, the trust will not be valid.

It is only the second trust that meets this third certainty test. The first trust does not identify any beneficiary. The language used ‘they will use it in the way we discussed’ does not provide for sufficient instruction for Parveen Kohli and Jeremy Bristow to carry out the terms. The second trust identifies Dullby Tiddlywinks Club as the beneficiary and there is clear instruction to use the amount in trust to refurbish the club and promote tiddlywinks. The third trust identifies the beneficiaries as the present and future employees of Fabulous Ventilators Plc and their families. However, Mr. Delaney did not specify how the net income was to be generated. There is no clear or sufficient direction as to the disposal of the case amount. The fourth trust does not identify the beneficiaries or beneficial interest and the language ‘to further the cause of Jediism’ does not specify clearly how the cause of Jediism could be advanced.

It is only the second trust, which is a valid trust. It is a valid fixed trust where the Will passes the three certainties test.

Constructive trust on behalf of Septimus

A constructive trust is an implied trust, where the trustees must carry out the lawful purposes imposed. It is created if there is an ‘inequitable’ denial by the owner of an equitable interest of the beneficiary in land. Thus, an owner’s conduct will justify imposition of constructive trust if his words or conduct has ‘induced the [beneficiary] to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land,’ there is a constructive trust. The modern law of trust provides that even if equity may not deny a legal title of a person to a property, the court can order this person to deal with the property for the true owner in equity. In this case, there is a constructive trust as Septimus relying on Mr. Delaney’s words undertook clearance and foundation work done at The Willows. Mr. Delaney’s words can, therefore, be said to have induced Septimus to undertake the work in the reasonable belief that by so acting he was acquiring a beneficial interest in the Willows. Excluding him from his beneficial equitable interest in the Willows will lead to an ‘inequitable’ denial. Based on the principle of modern law of trust, the court can order the trustees to deal with the Willows for the true owner in equity, who is Septimus in this case.

  1. Boyce v Boyce (1849) 16 Sim 476.
  2. IRC v Broadway Cottages [1955] Ch 20.
  3. Sarah Wilson, Todd & Wilson's Textbook on Trusts & Equity (12th ed., Oxford University Press 2015) 80.
  4. Iain McDonald and Anne Street, Concentrate Equity and Trusts (4th ed., Oxford University Press 2014), 30.
  5. Re Golay’s Wt [1965] 2 All ER 660.
  6. Graham Virgo, The Principles of Equity & Trusts (3rd ed., Oxford University Press 2018) 211.
  7. Westdeutsche Landesbank v Islington LBC [1996] AC 669.
  8. Gissing v Gissing [1971] AC 886.
  9. Ibid, at 905.
  10. Graham Moffat, Trusts Law: Text and Materials (4th ed., Cambridge University Press 2005) 61.

The modern law of trust provides that any failure to apply the Willows will attract imprisonment. Thus, a legal title will be subordinate to the interest of the owner in equity where the owner can enforce a personal remedy against the holder of the legal title. This is supported by Section 49(1) of the Supreme Court Act 1981, which prevails rules of equity over that of common law in case of conflicts. Thus, even if the Willows has been trusted to the trustees, the rules of equity will prevail to protect the equitable interest of Septimus in the Willows.

The Law of Property Act 1925 requires that the concerned trusts must be in writing and signed by Mr. Barry Delaney. This express trust proves his intent to make a gift. However, equity brings certain exception to this formality that does not require for Mr. Barry Delaney to have had done everything which he could in order to transfer property to the beneficiaries in the Will. For example, the principle of unconscionability makes a transfer by gift even though not registered a valid trust. It prohibits a conduct disrupting judicial conscience.

Trust originated based on the concept of equity, which comprises the principles of justice and conscience. Equity can enforce the trusts created by Mr. Barry Delaney. Equity ‘mitigates the rigours of common law’. The formalities requirement cannot be strictly applied if it leads to injustice cases. As such, principles of equity prevent undue benefit or compensate loss due to unconscionable conduct. Equity balances the need for certainty and need for just and fair results.

The Law of Property Act 1925 recognises the constructive trust. Even when a contractual constructive trust arising from a specifically enforceable agreement is orally created, an equitable interest in private company shares can be transferred. The broader principle of unconscionability would create a constructive trust in order to validate a transfer without requiring registration.

  1. Graham Moffat, Trusts Law: Text and Materials (4th ed., Cambridge University Press 2005) 61.
  2. The Law of Property Act 1925, s53(1)(b).
  3. Jones v Lock [1865] L.R. 1 Ch. App. 25.
  4. Cobbe v Yeoman’s Row Management Ltd [2008] 1 WLR 1752, 92.
  5. Pennington and Another v Waine, Crampton and others [2002] EWCA Civ 227.
  6. Ben McFarlane, Nicholas Hopkins and Sarah Nield, Land Law: Text, Cases, and Materials (3rd ed., Oxford University Press 2015) 177.
  7. Edward Reed, ‘England and Wales’ in Charles Gothard and Sanjvee Shah (eds.), The World Trust Survey (1st ed., Oxford University Press 2010) 203.
  8. Alastair Hudson, Equity and Trusts (7th ed., Routledge 2013) 4.
  9. Ibid.
  10. Ibid.
  11. The Law of Property Act 1925, Section 53(2).
  12. Neville v Wilson [1997] Ch 144.
  13. Pennington and Another v Waine, Crampton and others [2002] EWCA Civ 227; Mohamed Ramjohn, Unlocking Equity and Trusts (6th ed., Taylor & Francis 2017).
  14. Mohamed Ramjohn, Unlocking Equity and Trusts (6th ed., Taylor & Francis 2017).

Septimus can claim constructive trust in regard to the Willows. Even if the transfer of the Willows was not registered, it is a valid trust and otherwise it would go against the principle of unconscionability. The formalities requirement, which is Mr. Delaney’s failure to post the related document to Septimus, cannot invalidate the trust. An owner does not need to do everything. Thus, the formalities requirement cannot preclude Septimus from receive the property as it will lead to injustice. Any conduct that disrupts his rights will disrupt judicial conscience.

DIY Will - valid Will

Any interest in land, a declaration of trust and disposition of an equitable interest or trust must be in writing. A declaration of trust in regard to a land must be ‘manifested and proved by some writing signed by some person who is able to declare such trust or by his will.’

All property may be disposed of by Will, which is in in writing signed by the testator in presence of two or more witnesses. A deed clearly states the intend of the maker, and is validly executed as a deed by the maker, signed by the maker in presence of a witness who also signs the deed, and is delivered as a deed.

The concerned DIY Will is in writing signed by Mr. Delaney and two witnesses. The intent of Mr. Delaney is clear on the face of the Will. The Will complies with all the requirements of the Law of Property Act 1925, the Wills Act, 1837, and the Law of Property (Miscellaneous Provisions) Act 1989.

Beneficiaries of the Will - rights against the trustees in regard to the breach of the trust

The duties of the trustees give rise to the rights of the beneficiaries. Beneficiaries are entitled to information about the trust and to see all the trust documents. Beneficiaries have equitable proprietary interest in the trust property, which includes the trust documents. Thus, Cheney must note that only Septimus as a beneficiary of the Will of Mr. Delany can exercise this right to information and further check the trust documents to verify the validity of the trusts and the financial information of the trust accounts.

The right to information is limited to the part of the trust over which the beneficiaries have the proprietary interest. Parveen Kohli and Jeremy Bristow, as the trustees, are obligated to inform the beneficiaries the existence of a trust and the specific terms of the trust. Septimus, as a beneficiary, has proprietary interest over and can see the trust documents. In addition, Septimus can prevent a breach of the trust. Parveen Kohli and Jeremy Bristow must be single-minded loyal to the fiduciary duty; act in good faith; must not make a profit out of the trust; place themselves in conflict between their duty and interests; or not take independent decision without the consent of the principal, which benefits them or a third part. The fiduciary duties, find its root the development of trust based on equity. The medieval England saw landowners employed trusts, called “uses” then, such as the cestui que use to grant others land for the use of an intended beneficiary for a limited time. Such grant of land preserved original ownership by avoiding “feudal incidents”, including fees or taxes paid to the king. The Uses were employed to bypass the rule against Wills of land. This practice was stopped by the “Statute of Uses” in 1553 on the measures taken by Henry VIII. A body of land trust law was developed by the courts. Modern trust law now enables a person holding full title to a property for the beneficiaries, who may direct him to manage and use of the property. The separation between legal and equitable title caused the origin of the fiduciary duties and responsibilities. It gives rise to the proprietary right of the beneficiaries in the property and personal rights related with proper management of the trust’s affairs. In this respect, Septimus can enforce his rights and can trace after any trust property taken in breach of trust. He can sue Parveen Kohli and Jeremy Bristow personally in case of their breach of trust. Since Septimus has proprietary and personal rights, he can protect the trust properties from claims of third parties to the trust property.

Order Now
  1. The Law of Property 1925, Section 53(1).
  2. Ibid, Section 53(1)(b).
  3. The Wills Act 1837, Section 3.
  4. Ibid, Section 9.
  5. The Law of Property (Miscellaneous Provisions) Act 1989, Section 1(2)(a).
  6. Ibid, Section 1(2)(b).
  7. Ibid, Section 1(3)(a).
  8. Ibid, Section 1(3)(b).
  9. O’Rourke v Darbyshire, [1920] AC 581.
  10. Ibid.
  11. Alastair Hudson, Principles of Equity and Trusts (1st ed., Routledge, 2016) 8.4.2.
  12. Re Londonderry's Settlement [1965] Ch 918.

Beneficiaries are the ultimate owner of the trust property. They can jointly dis-apply the settlor’s intent to exercise effective control over the trust property. Beneficiaries may sue the trustees for the latter’s’ breach of their duties. In case of two or more trustees, the trustee specifically responsible for the failure will be liable for the breach.

In this case, Septimus can access the trust document to verify the validity of the trusts and the financial information of the trust accounts. Septimus can exercising his right to prevent Parveen Kohli and Jeremy Bristow from breaching the trust. He can check whether or not they have acted in good faith and have not make a profit out of the trust in consideration of the new purchase of houses by Parveen Kohli and Jeremy Bristow and the purchase of a holiday home by Parveen and gifting it to his wife. The fact itself shows that Jeremy had misused the trust money to gamble and used the profit made out of it to make a stair lift and the luxury wet room. The alleged misuse of the trust for their own profit and for the profit of a third party, who is Parveen’s wife, will be a conflict of interests breaching the fiduciary duties as trustees.

  1. Alastair Hudson, Principles of Equity and Trusts (1st ed., Routledge, 2016) 4.1.1.
  2. Bristol and West Building Society v Mathew (1996) EWCA Civ 533.
  3. David J. Seipp, ‘Trust and fiduciary duty in the early common law’ (2011) (91) BUL Rev 1011; Graham Moffat, Gerry Bean and Rebecca Probert, Trusts Law (5th ed., Edition 2009), 41.
  4. Ibid.
  5. Ibid.
  6. John H. Langbein, ‘The Contractarian Basis of the Law of Trusts’ (1995) (105) Yale L. J. 625-631.
  7. Alastair Hudson, Principles of Equity and Trusts (1st ed., Routledge, 2016) 4.1.1.
  8. Ibid.
  9. Alastair Hudson, Principles of Equity and Trusts (1st ed., Routledge, 2016) 4.1.2.
  10. S Atkins, Equity and Trusts (2nd ed., Routledge, 2015) 420.
  11. Ibid.

Septimus can trace after any trust property taken in breach of trust. He can sue Parveen Kohli and Jeremy Bristow personally in case of their breach of trust. He can protect the trust properties from claims of Parveen’s wife to the trust property. Parveen Kohli and Jeremy Bristow will be liable in case of their breach of duties.

We hope we have covered all your concerns in this letter and laid down all the necessary information in a clear and concise manner. If you have any questions, please feel free to approach us and we will do our best to help you further. We look forward to hearing from you.

Yours Sincerely,

Johnson and Gove

Cases

Boyce v Boyce (1849) 16 Sim 476

Bristol and West Building Society v Mathew (1996) EWCA Civ 533

Cobbe v Yeoman’s Row Management Ltd [2008] 1 WLR 1752, 92

Gissing v Gissing [1971] AC 886

IRC v Broadway Cottages [1955] Ch 20

Jones v Lock [1865] L.R. 1 Ch. App. 25

Knight v Knight (1840) 49 ER 58, (1840) 3 Beav 148

Lambe v Eames (1870) L. R. 10 Eq. 267

Neville v Wilson [1997] Ch 144

O’Rourke v Darbyshire, [1920] AC 581

Pennington and Another v Waine, Crampton and others [2002] EWCA Civ 227

Re Diggles (1888) 39 Ch D 253

Re Golay’s Wt [1965] 2 All ER 660

Re Londonderry's Settlement [1965] Ch 918

Re Williams (1897) 2 Ch 12]

Westdeutsche Landesbank v Islington LBC [1996] AC 669

Legislation

The Law of Property Act 1925

The Law of Property (Miscellaneous Provisions) Act 1989

The Wills Act 1837

Books

Atkins S, Equity and Trusts (2nd ed., Routledge, 2015)

Hudson A, Equity and Trusts (7th ed., Routledge 2013)

Hudson A, Principles of Equity and Trusts (1st ed., Routledge, 2016)

McFarlane B, Nicholas Hopkins and Sarah Nield, Land Law: Text, Cases, and Materials (Oxford University Press 2015)

McDonald I and Anne Street, Concentrate Equity and Trusts (4th ed., Oxford University Press 2014)

Moffat M, Trusts Law: Text and Materials (4th ed., Cambridge University Press 2005)

Moffat G, Gerry Bean and Rebecca Probert, Trusts Law (5th ed., Edition 2009)

Ramjohn M, Unlocking Equity and Trusts (6th ed., Taylor & Francis 2017)

Reed E, ‘England and Wales’ in Charles Gothard and Sanjvee Shah (eds.), The World Trust Survey (1st ed., Oxford University Press 2010)

Virgo G, The Principles of Equity & Trusts (3rd ed., Oxford University Press 2018)

Watt G, Trusts and Equity (9th ed., Oxford University Press 2020)

Wilson S, Todd & Wilson's Textbook on Trusts & Equity (12th ed., Oxford University Press 2015)

Journals

Langbein JH, ‘The Contractarian Basis of the Law of Trusts’ (1995) (105) Yale L. J. 625-631

Seipp DJ, ‘Trust and fiduciary duty in the early common law’ (2011) (91) BUL Rev 1011


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