Facts
- The matter concerned the will of a testator who left his entire real and personal estate to his wife.
- The relevant will clause stated that the bequest was made "in full confidence that she would do what was right as to the disposal thereof between his children, either in her lifetime or by will after her decease."
- The language used prompted debate over whether it imposed a legally binding trust for the testator’s children or merely created a moral obligation for the widow.
- Previous case law sometimes construed similar language as establishing a trust to safeguard family inheritances.
Issues
- Did the testator's use of the phrase "in full confidence" in his will create a legally enforceable trust over the estate in favour of his children?
- Was the language used in the will sufficient to manifest an intention to create an express trust, or did it only place a moral duty on the wife?
Decision
- The Court of Appeal held that the words "in full confidence" did not constitute imperative language capable of creating a trust.
- The testator’s language was interpreted as intending an absolute gift to his wife, rather than imposing a legal obligation to hold the property for the benefit of the children.
- The court clarified that expressions of hope, wish, or confidence (“precatory words”) do not create a trust absent a clear intention to impose a binding legal duty.
Legal Principles
- For an express trust to be valid, there must be certainty of intention to create a trust; mere moral obligations or expressions of confidence are insufficient.
- The courts distinguish between precatory words (e.g., hope, wish, confidence) and imperative words (e.g., shall, must, is directed to), with only the latter capable of creating a legally binding trust.
- The intention to create a trust must be clear from the language of the will or document; it is not necessary to use the word “trust,” but the language must manifest a binding obligation.
Conclusion
The Court of Appeal in Re Adams and the Kensington Vestry established that precatory language, however well-intentioned, does not create a trust. Only clear and imperative language can satisfy the requirement of intention needed to establish a legally binding obligation on a trustee.
