Equity law Essay Example | Topics and Well Written Essays - 5000 words

Equity law - Essay Example Firstly, this scenario raises the issue of creation of a private express trust. An express trust is like a fiduciary relationship where the person who is the trustee holds legal title for property in trust for the beneficiary who holds the equitable title. In order for a trust to be valid, it must be in writing, it must be executed by a settler who has the necessary capacity, it must have a legal purpose, must have an identifiable beneficiary and trustee, and the intent to create a trust must be clearly identifiable. In the case of Alice’s will, the validity may not be questionable in large part because it has been set out in writing. It appears that Edward is the primary beneficiary, although he is also one of the executors of the trust. One of the issues that arises in this case is establishing the validity and authority for both Edward and Alice’s carer Sandra, to function as executors of her estate. One of the first things that must be established is whether the will as written can stand as an express trust with testamentary capacity having been adequately proved. The terms of a will can be held to be valid only if it can be shown that a testatrix was in full possession of her faculties when she made the dispositions under the will. In the recent case of McClintok v Calderwood1 this was one of the issues that was raised. In this case, the defendant was the wife of one of the deceased’s nephews. The deceased had made two wills while at a nursing home, the only difference between the two was that the first one did not name an executor, while the second named the defendant as executrix of the deceased’s estate. One of the defendant’s brothers contended that the wills were invalid for lack of testamentary capacity and for want of knowledge and approval. Testamentary capacity was however, established in the case of McClintok v Calderwood. Although the deceased had been confused at times and showed early signs