Equity and trusts Essay Example | Topics and Well Written Essays - 3000 words

Equity and trusts - Essay Example If each of these elements can be ascertained by reference to Sadhia’s will and trust instrument, the trustees will be bound by her dispositions. However, the emphasis is on certainty of intention. It was held in Tana & Anor V Tana & Anor, that â€Å"certainty of intention is in many ways the most important† certainty.2 Therefore, in a typical case, once the court is satisfied that the â€Å"declarant had the requisite intention it will strive to validate it.†3 It is against this background that the trustees of Sadhia’s estate should proceed. Bearing in mind that certainty of intention is the most important element for determining whether or not each of Sahdia’s gifts form valid declarations of trusts, the trustees are advised to proceed with this mindset. The gift of the cottage to Sadhia’s husband appears at first glance to be a discretionary trust in that the declaration assumes that her husband will do what is necessary to benefit the children of the marriage. In other words Sadhia has left the question of their children’s benefit up to her husband’s broad discretion. Certainty of subject matter is unambiguously Sadhia’s cottage and that is assuming Sadhia only has one cottage capable of being distinguished from any other realty she leaves behind. The objects of the trust are also unambiguously stated and are the children that Sadhia shares with her husband. The difficulty however, involves certainty of intention. It was held in Wright v Atkyns Turn & R 143 it is possible to descern whether or not there was an intention to create a trust by the words used. However those words must be clear and imperative4 although he failure to use specific words will not render the creation of a trust invalid.5 That said, the use of the words â€Å"in full confidence that he will do what is necessary to benefit our