Law of Trusts - Re Adams and the Kensington Vestry - Coursework Example

As decided in Lambe v Eames, the transfer of property to another to benefit the donee and her family was an absolute gift and did not constitute a trust.

A wish similar to Alfred’s was also expressed in the case of Re Adams and The Kensington Vestry. In this case, the testator in transferring property to his wife expressed a wish that she did what was as right for their children about disposing of the property. The only difference between Adam’s transfer and the transfer of property in Re Adams is that Adam’s words were more specific and contained more certainty relative to his intentions to create trust. However, since, Alfred’s request came after he had already transferred the property to Barbara, Alfred did not create a trust as a declaration of trust can only occur upon or before the transfer of the property in question. In any event, a request is insufficient to constitute certainty of intention. Once Alfred transferred the property to Barbara he no longer had any authority over the property. As for Barbara, it is entirely doubtful that she intended to create a trust as she merely agreed with Alfred and can therefore be said to be acting on a moral obligation which is not sufficient enough to establish an intention to create a trust.

Certainty of objects refers to the certainty with which the beneficiary of a trust can be identified. At the end of the day, it must be possible to state with some degree of certainty that a particular beneficiary is the intended object of the trust. In a fixed trust such as the one contemplated by Alfred, the identity of the beneficiary is expressed so that the trustee does not have the discretion to determine who is and should be included in the category of entitled beneficiaries. The important thing in both discretionary and fixed trusts is that there is someone that can be identified with a degree of reasonable certainty that is entitled to the benefits of the trusts. There is no question that certainty of object is established in this particular case as it is clear that Chloe is the intended beneficiary.

Concerning the certainty of the subject, the trust property must be identifiable. At the end of the day, the trustee must be put in a position to know what property transferred to him by the donor applies to the trust. There must be certainty as to what portion of the property must be shared or distributed among the identifiable beneficiaries. Read More