Advise Barry, Edna and Gwen of their rights - Essay Example

The following day Les took the title deeds to a cottage he owned in Southport and wrote on them ‘All this now belongs to Edna’. In July 2009, Les was diagnosed with cancer. He said to his mistress, Gwen: ‘It is my dying wish, Gwen, that you should have my Knightsbridge penthouse apartment. Here are the keys to the apartment and to the deed box which is at my bank. Put them in your bag. My solicitor will sort out the details when I am dead.’ Advise Barry, Edna and Gwen who wish to know whether they are entitled as beneficiaries under completely constituted trusts of, respectively, (i) the watch, (ii) the shares and the cottage, and (iii) the Knightsbridge apartment.

In order to advise the parties in the above, it is necessary to determine whether any of the bequests would be regarded as valid. When determining the validity it is necessary to ensure that the dispositions have been fully constituted. Within the law of trusts and bequests certain formalities have to be adhered to in order for the trust document and will to be regarded as valid. As there is no indication in relation to the age and mental status of Lee it will be assumed, in this instance, that the requirements of the Family Law Reform Act 1969 s1(1) have been satisfied.

Where a trust is created in a will, the courts will determine the validity by reference to the Wills Act 1837 s9 which was amended by Administration of Justice Act 1982 s. 17. With all bequests, the three certainties need to be present in order for the bequest to be fully constituted. The three certainties are certainty of intention1, certainty of subject matter2 and certainty of objects3. Intention can be inferred from the wording in the will, and it is therefore important to ensure clarity when making a will.

The case or Re Kayford demonstrates that the word trust does not need to be included in the wording of the will in order for the