Introduction

Trust is the expectation of an individual that another selected person will act on their interest. In terms of the law, it is an arrangement where land and any other property will be fared by the trustee for a legatee. The trustee is obliged to deal with the property to the best benefit of the beneficiary. Trust as a legal term is more of action than words; it is, therefore, crucial to consider several factors before making a trust. Since this is a fragile issue, both parties must be well informed about the reasons for building trust. Legalities concerning belief must be met and adhered to so that its implementation will not be ambiguous. Formalities that need to be followed must be complied with, and any other matters that might vitiate the trust be considered keenly.

1

Trust as substance and not words

Both the testator and trustee should be sure about the intention of forming a belief. The settlor’s intention must indicate that they intended to create a trust. This primarily because the matter is more of substance and not form. A trust will be more of property and not the mere writings to be presented. The language used must be sufficiently imperative as to be construed to have created trust between both parties (Meer, p. 199). It should not hide things from any perceptive. The presence of such fishy thins might create confusion in the future when implementing it.

“Certainty of subject matter.” A present property can be held on trust, since the trustee can hold it the future. The trust property in interest must be certain. This is in specification of the share that any of the beneficiary should get (Meer, p. 195). If certainty is not met, confusion will elapse which might cause conflict. It is with a consideration that the testator is no longer present at the time of giving it out, hence confusion on his/her intention. A reasonable precision must be made on the property. Its constituents must be precisely indicated. This is to ensure that there is no overlapping statements about it. All information about the property, sharing ratios, required timelines, and also any impending conditions be indicating clearly.

Certainty of beneficiary must be vitally considered (Lemann, p. 346). With regard to the various parties that might be involved, each of them must be indicated and considered with precision. A full list of beneficiaries must be made in cases where the trust is fixed. It is to ensure that the trust is valid and that the trustees are known defined most probably with their names. Majorly, this certainty is necessary since the court can conceptually make a decision on the people who are in clause to which the trust has referred (Torres et al., p. 281). Therefore all the intended beneficiaries fairly benefit from the property share.

It is therefore necessary to adhere to and consider the actual intention of forming a trust between any two parties involved. This ensures that no future confusion on sharing the property will be experienced. Also, any intended beneficiary will benefit as per the testator’s intention without any present confusions being experienced.

2

Mary’s conditional trust

The testator would like his daughter Mary to be given twenty thousand euros. It is however on a condition that she has to pass her law degree with a first class honors. This bequest is a conditional subsequent bequest since its vest is dependent on the passing of the daughter (Torres et al., p. 281). For Mary to enjoy it, she has to meet the written conditions as per the requirement by her dad. This is by attaining a first class pass in law and without attaining this she will not enjoy it. This bequest is not dependent on time and should be implemented once the condition is met by the daughter.

In case Mary does not meet the condition as per the dad’s will she cannot benefit. This is legally made since the will is not ambiguous therefore the gift does not vest. It is therefore clear that she will have no legacy from her father since she has just one gift attached to her. However, she cannot legally complain to anyone about it considering that she not might to be aware of its presence. It would also be illegal if passed her law degree as per her dad’s and be not rewarded.

Peter (executor) and the testator’s helpers

From the will, Peter is entrusted to distribute one hundred thousand euros to help the people who helped the testator when he needed them. This is charitable trust where the main intention is to benefit people who helped the testator (Bakija et al., p. 367). It is however, there is no precision in this bequest since the settlor did not specify who they are and what each one of them should get. It is therefore hard to determine who they are even when the court addresses the sharing of the trust. The testator’s time of need is not also specified. It therefore makes it to determine when it was precisely.

For a better solution about the sharing of the trusted amount, Peter will be require to present himself to the court. It is ensure that he submits the names of most probable beneficiaries to the court for ab appropriate ruling to be done. Both Peter and the beneficiaries have no control and interests in the trust. They therefore cannot legally make personal decisions about it (Swadling, p. 975). The judge will create through an order a trustee report for a “scheme for distribution”. It is the by report that an approval is made with a consideration of the purpose of the charitable purpose.

In case where Peter dies having not made designation of the trust to the intended beneficiaries, what happens? In some countries the money should be given to charitable organization. This is because its initial purpose was for the benefit of the people who took care of him. And since they are unknown, and the executor is no longer present, the money eventually benefits other charitable organizations. In some other countries, the money would be given back to the testator’s living girls (Swadling, p. 971). This is because even though the money was meant to benefit people who cared for their father, the executor cannot represent the will of their father. They benefit from the money since they are the legal heirs of any property that the father had regardless of what he intended to have.

Jane’s and Ophelia’s choices, considering Jane dies before choosing

As per the testator, Ophelia and Jane should pick each one of houses at Hamlet Street. The two ladies have a choice of taking the house of their will. It is however, unclear what should happen since Jane is considered to have died before she could a choice. It is also unclear if she had heirs too and who should make a choice and pick on her behalf (Bakija et al., p. 367). It is legally correct that ladies should make choices on the house of their wish however one is dead making the situation hard. In the case that the Jane died and had kid(s), they will automatically benefit from the trust. This is regardless of whether she had a will on who should inherit it. Making the choice will however require the presence of a court. It because the kid(s) might not be in a position to make a valid decision on their own. The court decision will however be made with Ophelia’s presence since she also has a right to express her wish.

In the case where Jane had no kids, the property might benefit her sister. This is however full of ambiguity, since we assume that there is no legal document indicating that she should inherit it. Their father had not specified of inheritance in the occurrence of such a situation. Also the sister most probably was not aware of such a property meant for her. The property is also claimable by Jane’s creditors. This is however under a court order since Ophelia is also require to make a choice of the house she wishes to have.

From a legal perceptive, Ophelia can end up acquiring both houses as Jane’s sibling. It can effected with a consideration that she and her deceased sister had be assigned to own the Hamlet Street. Other siblings will be left out in the sharing since their names were not in any way involved in the sharing.

Conclusion

Trust is much of substance than bare words and agreements between the testator and the trustee. It is therefore vital for both parties involved in forming trust to have a clear and reasonable intention for its formation. All the legal issues must also be fully adhered to. This is to ensure that the trust meets all obligations and the beneficiary will fully benefit from it. There several types of bequests and they should be performed in accordance to the testator by the executor. A conditional bequests is met once the condition required stated by the testator is met by beneficially. Charitable quests requires that the trust to be given the specified beneficiary and not their heir(s).

In case of conflicting issues, the court is involved. It is mandated to rule out a decision according to the provided laws. Any conflicting trusts’ guidelines, are settled in the court in accordance to the testator. However if the terms are unclear, the ruling is made based on the country’s statutes.

References

Bakija, Jon M., William G. Gale, and Joel B. Slemrod. “Charitable bequests and taxes on inheritances and estates: Aggregate evidence from across states and time.” American Economic Review 93.2 (2003): 366-370.

Lemann, Thomas B. “Conditional Substitutions in Trust.” Tul. L. Rev. 50 (1975): 346.

Meer, Jonathan, and Harvey S. Rosen. “Donative behavior at the end of life.” Journal of Economic Behavior & Organization 92 (2013): 192-201.

Swadling, William. “Trusts and Ownership: A Common Law Perspective.” European Review of Private Law 24.6 (2016): 951-972.

Torres, Gerald, and Nathan Bellinger. “The public trust: The law’s DNA.” Wake Forest JL & Pol’y 4 (2014): 281.