T6 Certainties

Discuss the legal effect of the following dispositions in a will:

I hereby leave all my property, movable and immovable, to my dear wife absolutely. It is
my sincere wish that she will make reasonable provision for my two brothers.
I hereby give five million dollars to my brother to be held in trust for my son. I direct that
he should invest the money and use only the income towards maintenance of my son until he
is 21 years of age, when he should transfer the capital to my son absolutely. My brother may
in his absolute discretion give any part of the capital to my son before he reaches the age of
21, if he thinks it desirable to do so.
Discuss the legal effect of 2 dispositions:
Recall:
1. Certainty of Intention: clear intention to create a trust, rather than the intention to
transfer that property to someone absolutely
a. Trust: Use it for the beneficiary
b. Gift: Use it however you please
2. Certainty of Subject Matter: subject matter must be conceptually certain, because if
such an obligation is imposed on the trustee, the trustee must know what him/her is
required to handle
a. Certainty of Object: need to know for whom the trustee should be holding the
trust property for
3. Note*: Conceptually certain VS evidential certain
a. Conceptually certainty: concept itself being certain
i. E.g. I leave this paper clip on trust for the class
ii. Good looking difficult to ascertain, subjective
b. Evidential certainty: proofing if the alleged beneficiary falls within the class
specified in the trust document
Disposition 1:
1. Certainty of Intention:
a. Use of precatory words indicate his desire for someone to do something, but do
not actually indicate establishment a trust
i. Absolutely: gift
ii. my sincere wish: moral obligation
b. Re Adams: full confidence
i. Head of family wished to provide for his family, expressing that she
should do what he thinks would be equitable to do so no trust created
c. Comiskey: may be some precatory words used, but do not automatically suggest it
is/is not a trust, need to consider the whole document in its entirety, in order to
ascertain the intention of the settlor
2. Certainty of subject matter: reasonable provision
a. Is the subject matter ascertainable?

b. Re Golay: yardstick the court can use and apply to quantify the amount look at
previous circumstances
c. Purpose of the court is try to give effect to the will
3. Conclusion: On balance, likely to be a gift, problem with the intention, subject matter
where it says reasonable provision, that in itself creates another layer of uncertainty,
would be absolute gift, in both instances
Disposition 2
I hereby give five million dollars to my brother to be held in trust for my son. I direct that
he should invest the money and use only the income towards maintenance of my son until he
is 21 years of age, when he should transfer the capital to my son absolutely. My brother may [
in his absolute discretion give any part of the capital to my son before he reaches the age of
21, if he thinks it desirable to do so.
1. Combination of trust and a power of appointment
a. Trust: income
b. Power of appointment: capital
2. Bring the trust to an end when the son becomes 21 years-old
The purpose of this tutorial is to give you an opportunity to revise the topics certainty of
words and certainty of property. In order to answer this question, especially consider the
following issues:
(1) Rules of interpretation of a will in relation to precatory words especially the rule that
while words have to be given their ordinary meaning, the will must be read as a whole
to gather the intention of the testator.
(2) The word absolutely usually indicates the giving of an absolute gift. However,
when read in context, the word may merely indicate that the testator is transferring
legal ownership. See Comiskey case.
(3) It is usual for a settlor to create a trust and confer a power of appointment on the
trustee. The trustee may or may not exercise the power of appointmentit is a matter
left to his judgment. Power of appointment is quite useful if the settlor wishes to
preserve the capital during the infancy of his children, but wants to authorize the
trustee to give any part of the capital to any such children if the need arises, for
instance if a child is getting married.
(4) Trust property must be certain. What is necessary is for the court to be able to say
with certainty what property is subject to the trust. Obviously the bulk of my
property is uncertain. What about reasonable provision? Will a court be able to use
objective criteria to determine what is a reasonable amount in the circumstances of the
case?
(5) If trust property is uncertain, the courts will be doubly reluctant to accept precatory
words as being sufficient to create a trust.