A General Legacy

A general legacy is a testamentary gift, which can either be general or specific, in which that part of property is explained in general terms and included in the testators estate. Pecuniary legacy, on the other hand, includes an annuity, a demonstrative legacy, a general legacy, as long as it is not distributed out of the specific fund or property. Other examples include the demonstrative legacy (Reference case: Kirby v. Potter).

Advice to executors reference case Mullins v. Smith.

I believe that it constitutes a valid arrangement, since it meets all the requirements of a valid will. Thus, I advise executors to allow the trust to pass to Amanda the beneficiary.

In part (b) of the question, a gift of 50, 000 was given to Oliver and RJ, but this time round Hild had told Oliver directly that he was to hold the money for the use of Yolanda, but neither she nor somebody else told RJ about the plan. Oliver is worried in that he is the one of the signatories in the will. Yolanda can still claim the money. This is because the two persons mentioned here, Oliver and RJ, are disinterested party meaning that they have no interest in the property of the deceased. The case is based on trust law, where Oliver and RJ are the trustees. A trust may be defined as an equitable obligation binding another person to deal in the property, over which he has control (trust property) for the benefit of the persons (beneficiaries) of whom they have control over. An express trust is created not by facts and circumstances, but by the express words of the settlor (Fitzgerald v Stewart) (Robert Bradgate, 2007). A trust may be created in the following ways: A declaration of trust by the settlor whereby he makes himself the trustee of property for the benefit of some person; or the transfer by the settlor of the ownership of the trust property to trustees, and communication to the trustees of the terms, upon which they are to hold that property; or by will, just like Hild did, when she communicated her intention to have the 50, 000 given to Yolanda. In so doing, Hild transferred the property, i.e. the 50,000 to the original trustees in the proper legal manner. Similar transfers must be made on a change of trustee, but if a new trustee is appointed by deed, this operates to vest property automatically. The fact that RJ was not informed of the intended plan does not change the facts, this is because powers and duties may be imposed or conferred on trustees either by the trust instrument, and or by the general law. Duties impose an obligation upon the trustees to act; powers give them the discretion, which they can only exercise, if they are unanimous (re Hilton). A power may be coupled with a duty, in which case the trustees must act, but have the discretion as to the manner of acting, e.g. in relation disclosure of the facts in the will.

A trust may be completely and incompletely constituted in all cases the trust must be completely constituted. A trust is completely constituted, when the trust property has been vested in trustees for the benefit of the beneficiaries, just like Hild left the 50,000 to Oliver and RJ for the benefit of Yolanda. Where there is merely a contract or covenant to create a trust, the trust is said to be incompletely constituted.

A completely constituted trust may be enforced by any beneficiary, including a volunteer; an incompletely constituted trust can only be enforced by a beneficiary who has given value. Thus, a trust is incompletely constituted, where there is merely a covenant by a settlor to settle property, which he expects to acquire. If the settlor does not settle the property, when he eventually acquires it, although he will be liable in damages to the intended beneficiaries, if they were parties to the covenant, and the covenant was under seal, those beneficiaries, if volunteers, cannot enforce their expected beneficial interest in the property to be settled. (Jeffreys v Jeffreys)



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