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Equity and Trusts - Case Study Example

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The paper "Equity and Trusts" presents detailed information that at the outset, Sara’s mental capacity as a testator is not in doubt, because she satisfies the three conditions to establish mental capacity, as set out in the case of Banks v Goodfellow…
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Equity and Trusts
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Download file to see previous pages Testamentary capacity will be established if it can be shown that the testator had the required capacity while preparing the will and that the will was prepared in accordance with those instructions. It also appears unlikely that in Sara’s case, the disposition would take place in accordance with the intestacy rules, because her will clearly states that all her “real and personal” property has been left to Jim for a specified purpose. But the problem that arises, in this case, is the lack of clarity in what that purpose is. The will as it is written, allowing all of Sara’s property to pass to Jim is valid because it also satisfies the formality requirements,5 i.e, that a will is made in writing in the presence of two reliable witnesses. The question of whether it may be held to be lacking for want of knowledge and approval in the execution of the wills6 may arise in this case, because Jim was aware that Sara was making a will and naming him as a beneficiary. This may also provide grounds for Sara’s family to bring action against Jim for a breach of trust, as was the case in Mitchell v Halliwell7 where the Court ordered that a family member had an entitlement to disposition from a testator’s estate.
Hence, the most important issue that rises in Sara’s case is the determination of whether the disposition made to Jim under her will constitutes a trust or whether Jim is intended to be the beneficiary. Although Sara has orally stated that she wants Jim to look after her family in accordance with some written instructions, those instructions have not been found. A declaration of trust that is made orally may not be enforceable in court unless it is manifested and proved in writing8. This formality requirement has been implemented to prevent hidden oral transactions for equitable interests in trusts, which are difficult to determine and implement with any measure of certainty. It has been argued that a direction to a trustee by the owner of the property could be equivalent to a declaration of trust, but even this requires that it be in written form. ...Download file to see next pagesRead More
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