INTRODUTION TO THE LAW OF EQUITY AND

TRUST
- Work: watch bleak house trailer
- Challenge – look at business daily, page in the newspaper that list stocks
and shares, research on unit trusts and find examples of companies that
offer unit trusts, find more examples of financial investments companies.
HISTORY
- Equity- this was the direct response to the rigidity and inflexibility of
common law. It was developed through the court of chancery in the 11 th
century.
- Where does it fall under the hierarchy of laws?
- 2 main …… of equity: Trusts and equitable remedies
- The court established by the King travelling around the country. Become
known as the Kings bench. Common law developed here ……… mid-14 th
century – the chancellor was to hear cases where the litigants weren’t happy
with the judgement of the case. The kind had allowed people to petition to
him again, once he got tired of hearing petitions, he appointed a chancellor
to do so. If there was no writ (sealed letter from the King, directed to the
sheriff of lord of Manor) dealing with your issue, you were left alone. A writ
was a possible cause of action, there…….only pleading one cause of action,
common law had very limited remedies – damages and … equity came in
trying to correct the major deficiencies in common law.
- Towards the end of the 15h century the Chancellor started issuing decree’s in
his own name, then came the court of chancery, there were remedies and
rules created by this court and this caused a conflict between common law
and equity. AL v Earl of Oxford …. Anywhere where common law and
equity conflicted, equity should prevail, but this caused more conflict
between the court of chancery and common law courts. 19 th century, 1854
and 1858 – common law procedure act – common law court ……1858 –
chancery procedure amendment act- gave court of chancery power to give
common law remedies: damages. Common law and equity started to be
administered by the same courts through the judicature acts – 1873 and
1875. Section 3 of or judicature act mentions equity as a applicable in
Kenya.
- Each court was give legal and equitable jurisditon – you can plead common
law remedies and equitable remedies in the same hearing, in the same court
- Certain applied rules of common law and equity would conflict ne another –
for example that the common law and equity would, provide for diffrenet
 judgements, this problem was solved by 1873 judicature act that stated that
the rules of equity shall prevail.
- Substance over procedure/form – not supposed to detract people from
following procedure but in a case where the procedure was minor as
compared to the substance of the case, substance prevails.
Examples of trusts
- Unit trusts
- Pension schemes – type of trust, are managed as trust, national pension
scheme is known as the NSSF which we will all be entitled to after
retirement. If one person dies, the pension is entitled to the next of kin. Out
of a person’s salary, several deductions are made – income tax which goes to
KRA, NSSF deduction, there is a statutory minimum that a person must
contribute to the state depending on how much he earns – employer
contribution and employee contribution it is deducted from your gross
salary. The money from the deduction of employer and employee
contribution goes into a trust fund, this money goes into investments for the
state and pensions
- Charitable organizations are handled as trusts e.g. Bill Gates Trust Fund,
private organizations such as these are now handled as trust funds.
Philanthropy – people who have a culture of giving.
- Family trusts – families who have structured their money as trusts, one forms
it before he dies to handle who inherits what, it can also be set up in memory
of a person e.g. the Oginga Odinga Foundation.
- Mortgages/charge – the thing you buy becomes a mortgage and the bank
holds it as security until you pay back the loan taken to buy that thing. Are
regulated by statute but were created by equity.

Contributions of equity
1. Exclusive jurisdiction-
 THE MAXIMS OF EQUITY
- Principles in order to get a fair result/ trail.
- Guidelines that dev over time through the chancery court.
- They are not binding as they are principles
- They are flexible therefore respond to the persons needs.
1. Equity follows the law
- This maxim indicates that, where possible, equity will ensure that its own
rules are in line with the common law ones.
- As far as possible, equity will follow the common law therefore equity
supplements common law
- Where appropriate, the court will allow common law effect to prevail and
won’t provide an equitable remedy.
- Re v Diplock- Diplock died and left 250,000 pounds to benevolent org. His
descendants claimed that they had been disinherited due to the clause of the
benevolent org. Courts agreed. The orgs had mixed the money with theirs
and began projects with it. Held, that since it was not able to trace it, the
charities were allowed to keep it. Called ‘bona fide purchaser for value
without notice.’
2. Where the equities are equal, the law prevails. Where the equities are
equal, the first in time prevails.
- Interests prevail in order of the priorities.
- These two maxims are concerned with priorities, that is to say which of
various interests prevails in the event of a conflict.
- The general rule, as one might expect, is that interests take effect in order of
their creation, but, as regards equitable interests, these may be defeated if a
bona fide purchaser acquires a subsequent legal estate without notice of the
equitable one.
- Again, if there is a conflict between a number of equitable interests, they will
have priority in order of their creation, again subject to the ‘equities being
equal’ (i.e. both parties not being at fault or guilty of fraud etc.).
- Shows that equity will follow the law.
3. Equity looks to the substance rather than the form
- Courts of Equity make a distinction in all cases between that which is matter
of substance and that which is matter of form; and if it fi nds that by insisting
on the form, the substance will be defeated, it holds it inequitable to allow a
person to insist on such form, and thereby defeat the substance.
- This maxim is in the nature of a general principle only, which implies that
equity is generally less concerned with precise forms than the common law.
- Looks at he spirit rather than the letter.
- Street v Mountford- lease/licence?. Mrs Mountford had entered space from
him. He attempted to have someone to occupy his place but not as a lease.
Held it was a lease even though the terms were for a licence. (look this up).
4. Equity will not permit a statute to be used as an instrument of fraud
- It should be stressed that equity will not ignore statutory requirements
normally, but only, as the maxim implies, where it would be unconscionable
to allow a party to rely on a statutory requirement to another’s detriment.
5. Equity imputes an intention to fulfil an obligation
- Simply means that where a person has undertaken an obligation his later
conduct will, if possible, be interpreted as fulfilment of that obligation.
- Sowden v Sowden- husband and wife who agreed to create a family trust.
With an amoint of 200 pounds They never id the money to form the trust.
After the marriage, mr purchased property. When he passed, the court held
that the property was in trust of her and her family as the value was 2150
which was close to the value.
6. Equity regards as done that which ought to be done
- This relates most obviously to specific performance.
- If vendor and purchaser have entered into a specifically enforceable contract
(for example, for the sale of land), in equity the purchaser acquires a
beneficial interest and the vendor holds the land on constructive trust for the
purchaser.
- One party has a requirement to the other but equity looks at it as if it has
actually been performed. Equity will enforce the intentions of the party.
7. Equity acts in personam
- It is in the nature of equitable remedies that they generally operate against
the person of the defendant, being enforceable by imprisonment for
contempt.
- Another feature of this principle is that equitable rights were not enforceable
against everybody but could be defeated by the interest of the bona fi de
purchaser.
8. Equity will not suffer a wrong to be without a remedy
- This maxim indicates that equity will not allow the technical defects of the
common law to prevent worthy plaintiffs from obtaining redress.
- If someone has suffered as a wrong, they should get some form of redress.
- E.g specific performance- ensure party performs, injunctions.
9. He who seeks equity must do equity
- By contrast, equitable remedies are discretionary and the court will not grant
them if it feels that the plaintiff is unworthy, notwithstanding that prima
facie he has established an equitable right or interest.
- So the person who seeks an equitable remedy must be prepared to act
equitably, and the court may oblige him to do so.
- The maxim is also behind the principle of mutuality of remedies (if specific
performance is available to one party then it will be available to the other,
 even though damages would be adequate for that party) and the doctrine of
election.
- This maxim refers to the plaintiff’s future conduct
- Lorge v National Investment Company- B borrows Money from M (loan
shark), which was illegal at the time, by mortgaging securities to M. B then
decides to sue M. Court held that they cant give an equitable remedy until he
returns the interest back.
10. He who comes to equity must come with clean hands.
- This maxim means that a party seeking an equitable remedy must not
himself be guilty of unconscionable conduct.
- The court may therefore consider the past conduct of the claimant.
- It appears, however, that the ‘uncleanness’ must relate directly to the matter
in hand, otherwise anyone might be denied a remedy simply because he was
of bad character.
- Demands fairness from both partes, therefore if you don’t act equitably you
don’t deserve equity.
1st qualification:
- The uncleanliness must relate directly to the matter at hand. Dering v
Earl of winchezsea
- Cleaver v Mutual reserve- woman killed her husband in order to claim the
life insurance. She sued the mutual reserve ass but equity would not allow
her to profit from the crime.
- Oher principles under this:
o Reliance principle- equity will recognize the tittle provided they
can do so without relying on the illegality. Tinsley v Milligan-
purchased property together but when they decided to convey the
house, it was only conveyed in one person’s name as the other
wanted to continue receiving unemployment benefits. They
eventually disagree and when it comes to sharing the property, the
other party claimed 50% share. The court held in the favour of the
claimant as the illegality was not relied on in the matter at hand as
the claimant had paid for half the house. Lowson v Coombes- were
cohabiting. He is single, she is married. They purchase a house
together. The house is conveyed only in the name of Mrs.
Coombes. Which is illegal as it disinheriting Mr. coombes. Held
that Mr Lawson should have a share of the property as the illegality
was not relied on in the transaction. If they planned on carrying out
an illegal act, the court can still rely on it. Tribe v Tribe
11.Delay defeats equity
- Two matters must be noted here. First, the time in which an action for
equitable relief may be sought may be governed by the Limitation Act 1980
and, second, even where there is no statutory limitation, it will be governed
by the equitable principle of laches.
- A failure to bring an action may tend to confirm other slight evidence that
the innocent party has accepted or agreed to the breach of contract or other
ground for seeking relief, thus preventing him from enforcing his right to
remedies for that breach.
- If one is slow to claim their right, it is assumed that they relinquish it.
- Doctrine of latches- application of what be a reasonable delay/ lon
unreasonably delay. It is a defence.
12.Equity will not allow a trust to fail for want of a trustee
- The court has a residuary inherent jurisdiction to appoint trustees in
circumstances where the settlor has failed to appoint, or has appointed
persons who are now dead and has not given anyone else the power to
appoint.
13.Equality is equity
- equity will tend towards the adoption of equal division of any fund to which
several persons are entitled.
- Where there is no evidence in intere/ ho property should be shared, it is
divided equally
- If there is evidence to the contrary, the court will divide it as stipulated.
- Midland Bank v Cooke- matrimonial property. Mr cooke made direct
contribution, Mrs Cooke indirect contribution. These came later. Mr cooke
re-morgaged the house and the bank decide to sell the house. The bank
approached mrs cooke to concent to postpone any interest in the property
until the debt was paid. She claimed that it was signed in undue influence
and wanted it to be declared void and claimed 50% of the value. On appeal,
she substantiated the amount and it was granted based on her indirect
contribution (gissing v gissing).
14.Equity will not assist a volunteer
- A volunteer in this context is a person who has not given consideration for a
bargain.
- In the context of constitution of trusts that equity will not enforce a covenant
to create a trust in favour of a volunteer.
15.Equity will not perfect an imperfect gift
- Unless consideration is given, an undertaking to give something is
unenforceable, being a mere gratuitous promise.
- Therefore, unless property in the thing promised has been transferred, the
intended donee can do nothing to enforce.
- Likewise, where there is a gratuitous promise to create a trust the property
must have been vested in the trustees for the trust to be enforceable.
- Where a donor intends to transfer ownership in personal property to another
and maintains that intention until his death but fails to make an effective
transfer during his lifetime, if, on the death of the donor, the property
becomes vested in the intended donee as the donor’s executor, that vesting is
 treated as completing the gift. This is the effect of a line of cases beginning
with Strong v Bird.

EQUITABLE REMEDIES
1. RESCISSION
- Rescission is a remedy employed to set aside a contract and to restore the
parties to their pre-contractual positions.
- The contract is therefore voidable and remains until rescinded perfectly
valid.
- Accordingly, rescission reflects the desire of one party no longer to be bound
by the contract.
- Equity claims the ability to set aside a contract where the transaction is
tainted by what is known as vitiating factor. The grounds of rescission
include:
o Misrepresentation, which can be fraudulent, negligent or innocent
and in all the first two the victim can also obtain damages.
o It can also be a mistake of law. The mistake must have induced the
contract.
o Undue influence where one party exerts undue influence over the
other party which takes away the free will of the individual
contracting and the transaction can be rescinded under these
circumstances
o Breach of fiduciary duty. In these contracts the trustee owes a duty
of undivided loyalty and utmost good faith and is obliged to make
full disclosure and failure of disclosure may lead to the contract
being rescinded.
2. SPECIFIC PERFORMANCE
- It’s an equity remedy which compels a party to execute a contract according
to the precise terms agreed upon or to execute it substantially so that under
the circumstances, justice will be done between the parties.
- It operates in relation to the entire contract and not merely a part of the
agreement.
- The claimant has to come with clean hands and to apply for relief without
unreasonable delay.
- It grants the plaintiff what he actually bargained for in the contract rather
than damages for not receiving it. Thus specific performance is an equitable
rather than legal remedy. By compelling the parties to perform exactly what
they had agreed to perform exactly what they had agreed to perform, more
complete and perfect justice is achieved than by awarding damages for
breach of contract.
- It can only be granted only by a court in the exercise of it’s equity powers
subsequently to a determination of whether a valid contract that can be
enforced exist and an evaluation of the relief sought.
- As a general rule specific performance is applied in breach of contract
actions where monetary damages are inadequate.
3. SUBROGATION
- This is a substitution of one claimant by another and it enables the
acquisition of the others rights as against a third party.
- It allows say an insurance company who has paid out under a policy to take
over the legal rights of the insured and sue any wrongdoer for the loss it has
incurred. It’s also useful remedy where the claimant’s money is employed by
the defendant to discharge a secured creditor.
- There are two types of subrogation, which is :
o Legal subrogation arises by operation of the law The right of legal
subrogation can be either modified or extinguished through a
contractual agreement and it cannot be used to replace a contract
agreed upon by the parties.
o Conventional subrogation is as a result of a contract. Conventional
subrogation arises when one individual satisfies the debt of another
as a result of a contractual agreement that provides that the claims
or liens that exist as security for the debt be kept alive for the
benefit of the party who pays the debt.
- The purpose of subrogation is to compel the ultimate payment of a debt by
the party who in equity and good conscience should pay it and it’s used to
avoid injustice.
4. INJUNCTIONS
- Injunctions are orders of the court telling a party to a lawsuit to do or not to
do a certain thing they should be no more burdensome to the defendants than
necessary to provide complete relief to the plaintiffs.
- They are classified as mandatory prohibition, preventive and permanent.
o Permanent injunctions are granted after a full-blown trial on merits.
o Temporary restraining orders are granted after a brief hearing
where evidence may be presented by affidavit. They may be
granted without a hearing or notice provided there is some exigent
circumstance or necessity.
o Prohibitive injunctions command a party to refrain from doing
something.
o Mandatory injunctions command a party to affirmatively do
something.
- An injunction which has been issued by a court of equity and properly
served must be obeyed no matter how erroneous the court was in issuing it
 and unless the decision is reversed by the appellate court, it must be
respected and violation of the order may be punished as contempt of court.
- The purpose of the preliminary injunction is to maintain the status quo
between the litigants pending the final determination of the case
5. RECTIFICATION
- Is available to amend terms of the contract better to reflect the true
intentions of the contracting parties.
- It’s available in circumstances of common mistake only in unilateral
mistakes in terms of fraud or similar unconscionable behaviour also in
respect of voluntary settlement to reflect the settler’s real intention. The
court may order delivery or cancellation of documents.
- The purpose and nature of remedy of rectification is not to set aside but
rather to amend its terms to reflect the real intention of the parties and it’s
restricted to the written documents.
- Rectification does not alter the nature of the agreement on the grounds that
equity does not intervene in the contractual obligation and freedom of the
parties but it only alters it to reflect the true contractual intention of the
parties.
- Where there is a common mistake between the parties to contract and it’s
possible to ascertain their true contractual intention the court is able to order
the rectification of the written document.
- The common intention of the parties to the contract must demonstrate as to
support the claim for rectification. It’s important to demonstrate the
document contradicted the common intention set out in that agreement.
- In unilateral mistakes it’s only available in cases of fraud or similar
unconscionable behaviour where the defendant was guilty of fraud in
permitting the claimant to enter into the contract under a mistake, where the
defendant knew that the claimant considered the mistaken element to be a
term of the contract and where one of the parties to the contract knows of the
mistake and nevertheless allows the other party to enter into the contract a
form of equitable estoppels will prevent the person resisting a claim of
rectification.
- Rectification might also be available in respect of voluntary settlements to
reflect the settlers evident intention in rectification of a will where it can be
demonstrated that the will as adopted did not express the clear intention of
the testator.
6. DECLARATION
- In the high court
- In the case of Airedale NHS Trust v Bland, where a declaration was granted
stating that a trust could discontinue life-sustaining treatment for a man had
been in a persistent for a man who had been persistent vegetative state since
the Hillsborough disaster of 1989.
- Is a statement as what is in the law or what would be in the law at that time.
 7. Subrogation
- One party steps into another person’s shoes
- Arise in two different ways
o Automatically as a matter of law (equitable doctrine)
o By agreement as part of a contract (insurance)
- A car owner has insurance coverage and the car is damaged by negligent
third party, if the car owner elects to claim under insurance policy, then any
claims which the car owner had against the negligent party will pass to the
insurance company.
- Similarly, if a parent guarantees the debts of a child to the bank (i.e a
contract of surety), parent is subrogated to the bank’s claims against the
child and the bank can elect to call upon the guarantee(parent) rather than
claiming against the child directly.
8. Deserted wife’s equity
- Where a husband had left his wife and children, the wife had an equitable
interest in the matrimonial home, even if it was not owned jointly, so that she
could remain in the property while the children were young.
9. Proprietary estoppel and constructive trust
Trusts
- Anne and ben are cohabiting in a house for 10 years. Ben owns the house,
anne contributes non financially.
- The court recognises her ownership as a constructive trust.
- Could also be a resulting trust if there is an intention for them to own the
property jointly. The other has to show financial contribution.
- Express trust if she was named as heir.
- Constructive trust arises in law where it would be uncontainable trust for an
owner to enforce theirs to the exclusion of the other. The person must prove
that there was a common intention to show joint ownership
- Must show detrimental interest, how she improved and common intention to
own it jointly.
- It is a defence rather than a sword.
- Yaxly v Gots- a builder agrees to refurbished and converted an house to flats
and owner agrees to give him the bottom flats. After its completed, the
owner denies him the agreement. Court of appeal held that the builder is
entitled to it under constructive trust and proprietary interest.
- Pasco v Turner- guy owns house but tell her that its hers (active assurance).
She makes non-financial contribution. Gives rise to proprietary estoppel.
- Guillet v Holt- g worked for h for 40 years for little pay and even incurred
expenditure for the farm house. He rejected other employment as he was
promised the entire estate upon h death. Under p estoppel g could claim
interest.(passive assurance)
- Re Basham- detriment was non-financial. Claimant was looking at a very
elderly person. Court saw that this went beyond the normal and therefore p
estoppel was a remedy.
- C- financial, p estoppel, non-financial detrimental interest. None of these are
the actual remedy, the court would then decide what remedy to give you.
-
 PLACE OF EQUITY IN KENYAN LAW
- Doctrines or natural justice
- The 1st article is to what extent do doctrines of equity apply in kenya
- He says the question of application of equity in a unified system of laws
which are common law, customary laws, doctrines of equity, international
law, local legislation, the constitution.
- Where equity would be applicable in kenya
o Registration of land in kenya
- The constitution, Article 2(4): Any law, including customary law, that is
inconsistent with this Constitution is void to the extent of the inconsistency,
and any act or omission in contravention of this Constitution is invalid.
- Article 2(5)
- Section 3(2) of the judicature act: speaks about customary law and what
repugnant means.
- Section 3 (1c) of the judicature act: the doctrines of equity shall apply so far
only as far as the circumstances in kenya apply and its inhabitants permit.
Also a reference of the date of reception which was 12 th aug 1897 unless it is
excluded by any other statute.
- Busaidi v Busaid- a widow before her husband death had transferred
property belonging to her father after asking her hubby and bro to invest.
After her hubby dies, the bro in law tried to use the doctrine of advancement
to claim that she should not get any of that property. Under sharia law she
was entitled to ¼ of the money. He tied to use the doctrine of the
presumption of advancement doctrine (where a special relationship
exists[spouse, parent, father, fiancé] between the parties and A transfers to b
without consideration, b will hold the property in trust for a. Presumption
of Resulting trust is the same but there is no special relationship. It is
expected that the b is taking care of the property on behalf of a). court held
that sharia law applies and it was held that equity doctrine should not apply.
- The presumption of advancement exists on the basis of the secial
relationship, the law sees it as a gift (an advance) of something you could see
to get at a later date. It is rebuttable as any contrary evidence would result in
the throwing out of the doctrine. It doesn’t apply if a mother, fiancée,
cohabitees transferring property without consideration.
- Add limitations in ex book
- E.g where application of equity was limited by statute. Wakf commissioner
v public trustee- parliament passes law that can ooust equity doctrines.
Mohamedan Act section 4 states that local
- Suggested practices:
o If laws contradict, the local law applies
 o If the Kenyan law doesn’t apply, equity doctrine may still apply
o Above doesn’t banish the equitable remedy- Bilous v bilous- have
joint contribution to the acquisition but is registered in the one’s
name. the wife tried to claim it was only hers even though he had
executed the mortgage and agreed that they would hold the
property as tenants in common (separate and distinct shares). Court
rejected her claim as the husband did not contradict that she was
the only title holder, he was claiming to be an equitable tittle
owner. The rust n question affected the registered proprietor in
question.

AREAS WHERE THE DOCTRINE OF EQUITY HAVE BEEN APPLIED IN

KENYA.

- Bandani v Lombark Tanganyika- right to reposes in view of bandani not

fulfilling the terms of the contract. Courts refused to go further than eqity in
this case. 1st case that considered if estoppel to apply in EA.
- Wamala v Musoke- courts applied equity to solve the issue. If money was not
paid back, musoke could take his land which happened. Held that the lender
could only claim what he owed not the land that was used as security which
was more. This is the law under equity where the lender gets what he is
owed and loss suffered, no more.
- Waswa v Kikungwe- if the circumstances ae similar in kenya as to what
happens in common law, then equity can be applied.
- Merali v - was a business owner and credited some of the transactions to his
children. question is were these the equivalent to shares. The court put 2
ways where a valid gift/ trust can be created:
o A person divest themselves as legal ownership (remove yourself by
law)
o Constitute/ appoint yourself a trustee

Held that no legal trust was created as the above requirements were not met.

- Charitable trusts- Re Tanganyika national newspapers limited- newspapers

printing in vernacular. Charitable trusts need to prove that there is a public
benefit and there is a charitable purpose and must be exclusively charitable.
The question was whether printing in vernacular as a public benefit and
therefore could qualify as a trust. Held that since the vernacular reaches
more people than the official languages, it is a charitable trust as it
constitutes a public benefit.
- Equitable estoppel- Runda coffee estates v Ujagar Sing- defendant built a
house on their land with a liscene where the agreement could be terminated
by either parties at any time. Couldn’t rely on estoppel as the liscencor had’t
giben sing a propriootory interest in the land. ( page 137)
- Bandali- no estoppel as…
- Century automobiles v Hutchings biemer- an agrrement for occupation of
land under a periodic tenancy. Held that there was an intention to found an
estoppel and put conditions for where estoppel would apply in EA
o One party must make an equivocal intention on the other
o The other acts on it
o The promise is relied on
The courts held that estoppel applied here based on the above.
- Trustees and trustees duties-
- Guardianship of children- equity requires that the welfare of the children is
placed first.

- Do the doctrines of equity apply in article 2(4) of the constitution. Those that

Personal law- relates to family. The relevance to commercial setting e.g

remedies and for predictability. In personal law it relates to trusts.

Hw to explain the place of equity in kenya

Reception date

Section 3(1)(c)

Limitations. Also in article 2(5).

 TRUSTS
THE USE

- Was the way the law recognised the rights of the knights family to the
property based on the understanding that the friend or family member would
protect the property.
- One person owned the property at common law and the person at equity has
the right to use and enjoy the property(knights family)

TAX AVOIDANCE AND THE BIRTH OF THE MODERN TRUST

- The use evolved into a tax mechanism where the legal owner to avoid paying
taxes in the form feudal duels as even though they owned the land in
common law, they didn’t use it.
- Henry VIII enacts the Statute of Uses, 1535, which for taxation purposes,
recognised only the beneficial owner of the land.
- Lawyers, countered this with the ‘double use’. From A to the use B to the
use C.
- From A to the use of B on trust for C.
- Tax heaven- jurisdiction that has lower tax rates.
- Difference between
o Tax evasion- illegal means not paying your taxes
o Tax avoidance- looking for lawful means to pay less tax.

DEVELOPMENT OF A TRUST

- The use of trusts has been expanded to cover a wide range of areas
including:
- Family provision
- Tax planning
- Protection of creditors
- Charitable organisations
- Clubs and societies
- Pension schemes
- Investment trusts

DEFIITIONS OF A TRUST
- “…a trust is where one person transfers legal ownership of property to
another to hold that property for the benefit of somebody else”. Warner-
Reed, Equity and Trusts, 1stedn, 2011
- A trust is a relationship recognised by equity which arises where property is
vested in (a person or) persons called the trustees, which those trustees are
obliged to hold for the benefit of other persons called cestuisquetrustor
beneficiaries. Martin, Modern Equity, 17thedn, 2005
- Lay man’s definition: In law a trust is a relationship where property is
held by one party for the benefit of another party.
- 3 elements:
o A binding obligation placed on a ‘trustee’
o to manage or deal with property over which he has control
o for the benefit of another, a ‘beneficiary’ or for a purpose permitted
by law.
- Allows separation of control and enjoyment of property. Trustee has
management and control subject to the trust and the beneficiary enjoys the
benefit of the property.
- Historically property transferred was land, but in modern trusts property
takes the form of money, jewellery, or other items in addition to land.
TERMINOLOGY

Settlor: person transferring their property for the benefit of the 3rdparty,
creating the trust.

Example: John is settling his property on David for the benefit of Nathalie.

Trustee(s):person(s) who receives the property, to whom the settlor entrusts the
property. Note usually more than one for administrative reasons. The trustee
holds the legal title.

Example: David holds Ksh100,000 on trust for the benefit of Nathalie.

Beneficiary: person whom the property is to benefit. Either an individual or a

‘class of beneficiaries’ such as heirs, relatives, children etc. The beneficiary
holds the beneficial or equitable title to the property.

Example: Nathalie.
- Subject matter or trust property: the property given over into trust by the
settlor.
- Trust deed or trust instrument: the document that creates the trust and
contains its terms.
 In the case of wills
- Often trusts are created in wills.
- Testator(male) or testatrix(female): The person whose last wishes are
contained in the will. Often the settlor as well.
- Executor or executrix: person responsible for carrying out the testator’s or
testatrix’s wishes. Where named in will are also named as trustees of any
trusts being created. First clears the testator’s debts and funeral expenses,
and settles legacies. What remains after is known as the ‘residue’ or
‘remainder’.
- Legacy or bequest: a gift or share in the testator’s estate given to a specific
person. Made of money, personal property or chattels.
- Pecuniary legacy: a gift of money.
- Intestate: where a person dies without leaving a will.
- Administrator(male) or administratrix(female): person who administers
the deceased’s estate on intestacy.

LEGAL AND EQUITABLE INTERESTS

Legal interest

- The trustee holds the legal title. This enables them to manage the trust
property.
- The trustee’s interest in the property is distinguishable from the interest of an
outright owner in that the trustee is obligated to hold the property for the
benefit of those holding the beneficial (equitable) title.
- The law imposes strict duties on trustees to ensure that the trust property is
not misused, known as fiduciary duties. A fiduciary relationship exists where
the trustee who holds property on behalf of others acts in their interests
rather that the trustees own.
- Trustees are obligated to treat the property according to the terms of the
trust.

Equitable interest

- The beneficiary holds the equitable interest. This gives the beneficiary two
rights:

1)a personal right to enforce the trustees’ legal duties

2)a proprietary right –ownership in the trust property itself. The beneficiary can
enforce this right against the trustee or subsequent owners of the legal title. The
beneficiary can also dispose of their equitable interest e.g. by selling or giving it
away.

- Legal ownership still belongs to the trustee, beneficiaries have beneficiary

interest.

Example 1: on the death of a trustee, the trust property will not pass under the
trustee’s will, but will be held on trust by the PRs for the original beneficiaries.

UNDERSTANDING THE BENEFICIAL INTEREST

The nature of the beneficial interest in a trust varies depending on the terms of
the trust.

3 main elements

1.Vested or Contingent

Vested:The beneficiary has an interest which is already in their hands or will

definitely be in in the future, and does not have to satisfy any conditions before
becoming entitled to the trust property.

Example: A lifetime trust. Property is in trust for the benefit of A during their
lifetime, and then to B on the death of the testator.

OR

Contingent: The beneficiary’s interest is dependent on the happening of an

event which may or may not occur.

Example: Contingent event is the attainment of a certain age. Where the

beneficiary dies before attaining that age there is no certainty that they will
obtain their interest.

2. In Possession or In Remainder

In Possession: The beneficiary obtains their interest now.

OR

In Remainder: The beneficiary obtains their interest later.

Example: John gives Ksh100,000 to David to hold on trust for Nathalie for life,
and on her death for Linda.

3. Absolute or Limited

Absolute:An interest is the capital of the trust.

OR

Limited: An interest in the income of the trust.

Example: Nathalie’s interest is in the income of the trust only. Linda’s interest
is in the capital.

DIFFERENCES BETWEEN TRUSTS AND OTHER LEGAL CONCEPTS

A trust and contract

- A contract must have consideration. Trusts have no consideration, no bargain

or agreement, and instead a unilateral event where the settlor transfers
property to another for the benefit of a 3rd party.
- Once the trust has been created, the settlor has no power to enforce the trust
whereas a party to the contract has a right to enforce a contract on the basis
of their consideration.
- Contract originates in common law, the trust in equity.

A trust and agency

- An agent acts on behalf of and are instructed by their principal whereas a

trustee acts on behalf of the beneficiaries and not on behalf of the settlor. An
agent may have primary control over the property but do not have own the
legal title whereas in trusteeship the trustee is the legal owner of the
property.

Management of a trust and management of the estate of a deceased person

- A Personal Representative or administrator in the case of the estate of a

deceased person is a trustee for both creditors and beneficiaries whereas in
the case of a trust, the duties of trustees are to administer the trust for the
benefit of the beneficiaries only.
A trust and bailment
- Bailment: an agreement where a legal owner (bailor) usually under contract
for the payment of a fee places property under the physical control of
 another in return for which the holder of the property (bailee) assumes
responsibility for the property’s safe keeping and return.
- Bailee is in possession of the subject matter but does not have the legal
ownership whereas trustees are the legal owners of the property.
A trust and powers
- A power gives the donee the power of discretion as to whether or not to use
the power they are given whereas a trustee has no choice in carrying out their
duties.

WHY DO WE CREATE TRUSTS?

1.Protection and preservation of family property and assets

2. Ensure family welfare

3. Charitable i.e. public benefit purposes

4. Tax exemptions

5. Funds e.g. gratuity, pensions etc.

TYPES OF TRUSTS

•Private or public trusts

•Private: Trust is created by the settlor for the benefit of a private individual or
individuals.

OR

•Public: Trustee has given money or property to the trustees for a public use or
benefit.

Fixed or discretionary trusts

The terms of the trust may be either fixed or discretionary.

Fixed: The terms of the trust define how and to whom the trustees are to
share/distribute the trust property.

Discretionary: The terms of the trust give the trustee discretion to decide
the shares and/or to decide who will benefit from the trust.

Example: I give Ksh.100,000 to my trustees to hold on trust for such of my

children and in such shares as my trustees think fit.
•Allows trustees to respond to changes in circumstances when the time comes

•No individual has an equitable interest under a discretionary trust until the
trustees have exercised their discretion.

Express trusts or implied trusts

Express: Where the settlor has specifically and purposefully set out to create a
trust. Either by way of declaration or in writing.

OR

Implied: Resulting or constructive trusts

2 types of implied trusts

1.Resulting trust

2.Constructive trust

No requirement of an express declaration of trust or writing.

Resulting trust

1.Where the settlor intended to create a trust but failed to transfer the beneficial
interest in the property; or

2.Where contributions to the purchase price of a property are made by more

than one person but the legal title is held by one only. It is presumed that the
settlor intended to create a trust.

Constructive trust

Imposed by law (by the court) in any situation where conduct of one party is so
unconscionable that to allow no trust would be unjust or inequitable.

CREATION OF TRUSTS

Ways of creating a trust

1.Declaration: the settlor declares himself/herself a trustee by stating his/her

intention to hold the property for the benefit of someone else.

2.Transfer: the settlor transfers property to a trustee or trustees with

instructions that the property is to be held on trust for another.
3.Direction: the beneficiary of an existing trust directs a trustee to hold their
interest for the benefit of another.

Conditions for a valid trust/ the 3 certainties

1.Settlor makes an unequivocal declaration

2.Transfer of an identifiable property

3.To defined objects of the trust

1. Certainty of intention

- The settlor must have intended to create a trust. Differs from an outright gift as
there is no intention. Doesn’t have to use exact legal terms when creating a
trust.

- As a whole, this is ascertained by considering whether on the proper

construction of the words used, the intention was to impose a trust.

- The words “trust”, “trustees” or “beneficiaries” need not have been used.

•Intention can be inferred from conduct e.g. PAUL V. CONSTANCE[1977] 1

All ER 195.

- Mr Constance and Mrs Paul cohabited but were married to other people.
- Mr Constance puts £950 of his into a bank account in his sole name, tells
Mrs P that the money is ‘as much yours as it is mine’. Periodically they
topped up the account with joint winnings from bingo.
- On Mr C’s death Mrs C claims the money. Mrs P argued Mr C had intended
to hold the money on trust for the two of them. The money was split between
the two.
- Generally, “precatory” words are not sufficient (a request or
recommendation, hope or desire). Early case law demonstrates a more
lenient approach which allowed precatory words to be used in the trust
document.
LAMB v EAMES(6 Ch App 597)
- A man left all his property to his wife ‘to be at her disposal in any way she
may think best, for the benefit of herself and her family’.
- The court found that he had not intended to create a trust, but to give her an
outright gift for use at her discretion.
 Confirmed in Re ADAMS AND THE KENSINGTON VESTRY (27 CH D
394)
- A man leaves his wife property ‘in full confidence that she will do what is
right as to the disposal thereof between my children, either in her lifetime or
by will after her decease’.
- The court again held that this an absolute gift for the wife and not a trust for
the children.

Exception to the general rule

- Where the settlor copied the wording of a trust which had been found in the
courts to have created a trust. Re Steele’s Will Trust[1948] Ch603, will used
wording identical to that used in the case of Shelley v Shelley(1868) LR 6
Eq540 which had been held to create a trust.
Re KayfordLtd[1975] 1 WLR 279
- Mail order company runs into financial difficulty. To protect customers from
losing money paid for orders should the company go into liquidation they
deposited all the customers’ money into a bank account separate from their
own company funds, ‘customers’ trust deposit account’.
- After liquidation, did the money form part of the company’s assets that could
be claimed by liquidator? Held that it was the intention of the company to
hold the money on trust for their customers and the liquidator on that basis
was not entitled to the fund.

BOYCE V. BOYCE(1849) 16 Sim476

- Father makes a gift in his will to his daughter. She is to choose any one of
his houses and the remaining houses are to go to her sister Charlotte.
- Maria dies before her father. No choice was made on a particular house. For
that reason, Charlotte does not benefit either because ‘the remaining houses’
cannot be determined.
- Houses returned to his estate under a resulting trust and were inherited by
her father’s grandson.
- Property deosent disappear, it just follows the rules of intestacy.

RE GOLAY’S WILL TRUSTS[1965] 2 All ER 660

- Father left in his will a provision for his daughter to ‘enjoy one of my flats
during her lifetime’ and entitling her to a ‘reasonable income’ from the others.

1.‘Enjoy one of my flats during her lifetime’–gave the trustees discretion to

choose a flat.
2.‘Reasonable income’–could be measured by the trustees.

- Extra care should be taken when describing shares of property.

PALMER V SIMMONDS(1854) 2 Drew 221

- Testator attempted to make a gift of ‘the bulk’ of his estate. There was no
way for the trustees to determine what exactly constituted ‘the bulk’ of the
testator’s property.
- It wasn’t an exact definition of how much.

Tangible property

RE LONDON WINE CO. (SHIPPERS) LTD [1986] PCC 121

- It was suggested that when an order was placed the wine would be held on
trust until the time it was delivered to the buyer. Held that unless the subject
matter of the order had been separated from general stock it was not possible
to distinguish between the wine held on trust and that of the general stock.

RE GOLDCORP EXCHANGE LTD [1994] 2 All ER 806

- Purchase of gold bullion from the reserves of a New Zealand mining

company.

Intangible property

HUNTER V MOSS[1994] 3 All ER 215

- Transfer of 50 shares by Mr Moss to Mr Hunter from 950 shares. Shares

were identical therefore it could be any of the 950.
- Where tangible property, the share for the beneficiary must be physically
separated from the remainder in order for there to be certainty of subject
matter. However, where intangible property, the share can be carved out
from the whole.
3. CERTAINTY OF OBJECTS

Also known as the ‘beneficiary principle’

The object(s) or person(s) intended to benefit must be certain.

MORICE v BISHOP OF DURHAM [1805] 10 Ves522

- ‘to such objects of benevolence and liberality as the Bishop of Durham in
his own discretion shall most approve of…’
- Trying to create a fund for people in need.
- Trust was found to be void for lack of certainty of objects.
- More care should be taken by the settlor where the object is not an individual
but a class.
- Tests according to whether the trust is fixed or discretionary

(i)Fixed trusts

In a fixed trust trustees have no discretion as to who will benefit so they must
know exactly to whom they should distribute the trust property to.

‘Complete list’ test: IRC v. BROADWAY COTTAGES TRUST [1955] Ch20 -

A comprehensive list of all beneficiaries.

a) Conceptual certainty: clear concepts that direct the trustee on the type of
person.

b) Evidential certainty: evidence on whether a particular individual qualifies.

Lack of it makes it difficult to prove that a particular beneficiary is a member of
the class of objects specified by the settlor. E.g. an employee working cash in
hand.

Example: “Ksh. 1 million on trust for all employees and ex-employees of

Njuguna’s Hardware Suppliers Ltd in equal shares.’ The company was started
in 2006 and has no records of its employees pre-2008.

(ii) Discretionary trust

MCPHAIL V. DOULTON[1971] AC 424. Also known as RE BADEN’S

DEED TRUSTS(No.1).

- Settlor, Mr Baden establishes a fund to benefit the employees of a company,

Matthew Hall & Co. Ltd.
- ‘any of the officers and employees or ex-officers and ex-employees of the
Company or to any relatives or dependants of any such persons’.
- Difficult to draw up a complete list (IRC v Broadway Cottages) of
beneficiaries.
- ‘Any given postulant test’or ‘is or is not’ test.
- (Widened application of the test for powers in Re Gulbenkian’sSettlement
Trusts[1970] AC 508.)
- RE BADEN’S DEEDS TRUSTS(No.2).( appeal of the above)
- The CA considered how the ‘is or is not test’ should be applied.
- Mr Baden argued that the words used to describe the objects of the trust
‘relative’, ‘dependant’ were uncertain.
- The court interpreted ‘dependant’ as a person relying on financial support.
- All judges found the term ‘relative’ valid but for 3 different reasons. 1) LJ
Sachs –descendant of a common ancestor. 2) LJ Stamp –‘next of kin’. 3) LJ -
- Megaw–a substantial number of persons would fall within the class rather
than showing that any given person would fall within it. Adopted children?
Foster children?
In summary:
- A trust will fail where there is:
- 1. Conceptual uncertainty
- 2. Administrative workability: where the class of objects is “too large and
unwieldy” for the trustees to sensibly manage.
- with the fund reverting back to the settlor (or his estate).

Ex parte West Yorkshire County Council(1985) The Times 25 July.

- The CC tried to set up a trust for the benefit of ‘any or all or some of the
inhabitants of West Yorkshire’.
- Class was too wide for the trustees to realistically deal with, with the county
having as many as 2.5 million residents.

TRUSTS: PRACTICAL APPLICATION

Identifying the right type of trust

QUESTION 1

Benjamin consults you about his will.

Benjamin is aged 60 years and retired. He is divorced from his first wife,
Marilyn. He has three children from his first marriage, Sophie, Martin and
Liam. Sophie is 30 and is self-sufficient. Martin aged 19 is severely disabled
and requires round-the-clock care. Liam, aged 25, is a playboy.

Benjamin remarried aged 45. His second wife Margaret is a successful author of
a best-selling leadership book series.

Benjamin wants to leave a large legacy of Ksh.5 million to his children. He is

concerned that Martin would not be able to manage his share and that Liam
would squander his. After the legacy for his children, the estate remainder
would be Ksh. 3 million. He would like to leave Margaret a share, but explains
that she does not need a large share because the income from her book series is
enough to sustain her through retirement. Following Margaret’s death, he would
like the Ksh.3 million to pass to his children.

Advise Benjamin on how he can achieve his aims by addressing the

following points:

Ksh5 million legacy

(i) Why would an outright gift to Martin and Liam be inappropriate?

Liam would waste the money and martin would not be able to make
thse desciosns as he is disabled and needs round the care help.

(ii) Why would a trust for Liam absolutely cause problems? Absolute here
means the interest and in the capital being a playboy he may be a
player. He is 25 and is absolutely entitled to a trust as he may end the
trust and throw out the trustees.

(iii) Is there any other type of trust which would be more suitable for
Martin and Liam?

Ksh3 million

(iv) Why would an outright gift to Margaret be inappropriate? She is self-

sufficient and he also wants his money to go to his kids. Also she
would have complete power over the money with an outright gift. she
could argue that she already makes her own money and she won’t rely
on it. Or that she contributed to the money or that she would take care
of her children.

(v) Is there a type of trust that would cater for Margaret’s immediate
financial needs after Benjamin’s death but at the same time ensure that
the Ksh3 million passes to Benjamin’s children after her death?

Fixed/limited

Fixed or discretionary trust

QUESTION 2

Access the Exams Bank portal on the Strathmore Library website. Answer
Question 5(a) from the Equity & The Law of Trusts July 2015 exam paper.

1. Fixed trust- subject1million shillings, object-

 2. Discretionary- they have discretion on the object of the trust. Subject-the
entire estate. Objects-friends but it’s too wide.
3. Fixed then it becomes discretionary when the brother dies. Subject- share
capital. Object brother then cousins. Discretion of which cousins and how
much each get.

QUESTION 3

Which of the following are public trusts?

(i) I give Ksh.500,000 towards the education of my cousins, Noah and

Cliff. Private.

(ii) I give Ksh500,000 towards the education of the children of employees

of Strathmore University. Private as it specifies who. Mcfee v dolton
case.

(iii) I give Ksh. 500,000 to the education of children from disadvantaged

backgrounds in Nakuru county. Public as it is a larger group of people.

Certainty of intention

QUESTION 4

Amanda makes the following gifts in her will. Which, in your opinion, did
Amanda intend to give over into trust?

(i) I give Ksh500,000 to my friend Jasper which I desire should be

divided equally between my children as well as my nieces and
nephews.

No certainty as she says I desire (meaning strong hope). Doesn’t impose any
obligation

(ii) I leave my cottage to my brother John and wish that he should give it
to the most deserving of my colleagues.

Same as the above

(iii) I give my favourite diamond earrings to my cousin Elsie, in the hope

that she will pass them on to her daughter (my niece) when she comes
of age.

Hope- precatory word, doesn’t show certainty of intention.

 The above are outright gifts.

(iv) I give the rest of my estate to be divided equally between the current
members of the Nairobi Metropolitan Bikers’ Society in memory of
the many happy hours I spent with them on the open road.

There is a clear direction where the money is to go. There is sufficient

certainty of intention.

Precatory words

QUESTION 5

On construction of the words below, which of the following show sufficient

certainty of intention to create a trust?

(i) ‘it is my desire the she allows…an annuity of £25 during her life’ Re
Diggles (1888) 39 Ch D 253

(ii) ‘I wish them to bequeath the same between the families of … and…’
Re Hamilton [1895] 2 Ch 370

(iii) ‘in the fullest trust and confidence that she will carry out my wishes in
the following particulars’ Re Williams [1897] 2 Ch 12

(iv) ‘for the benefit of themselves and their respective families’ Re Hill
[1923] 2 Ch 259

(v) A man left his estate to his widow:

‘in full confidence that she will make such use of it as I should have made
myself and that at her death she will devise it to such one or more of my nieces
as she may think fit and in default of any disposition by her thereof in her will…
I hereby direct that all my estate and property acquired by her under this my
will shall at her death be equally divided among the surviving said nieces’.
Comiskey v Bowring Hanbury [1905] AC 84.

Shall means direction. You have to do it. It shows certainty of intention to

create the trust. Even though the first part shows precatory words.

Certainty of objects

QUESTION 6
Identify three or more reasons why a trust with uncertain objects is unworkable
for trustees, courts and beneficiaries.

1. Makes it difficult to carry out their role

2.

Trustees powers
1. Power of maintenance and accumulation of powers
- Section 33
- For beneficiaries who is a minor
- Income is what is being maintained
- During the infancy f the child as long as its interest remains
- The trustees ca use this power for
o Maintenance- healthcare, food, maybe an annual birthday present
o Education or
o Benefit
- It’s at the discretion of the trustee on how much to use for the beneficiary’s
benefit.
- Trustees can supplement what the parent/guardian can’t.
- Accumulating surplus- hold/ invest the property. Trustees are under an
obligation to hold for the beneficiary and invest it to generate more income.
- Section 33(2a)- conditions. The trustees accumulate the surplus until they
attain the age of 21 or are married.
- Annuity- interest accumulated on an investment.
2. Power of advancement
- Giving over property as a gift.
- The capital sum is what is being advanced.
- Section 34(1)- conditions
o Can’t give the whole of it/Can’t one half of the share of that
beneficiary’s interest in the capital sum.
o Has to be an absolute interest which is indefeasible
o Can’t prejudice any other beneficiaries interest
- Doesn’t apply to land. It only applies to only where the trust property
consists of money or securities or of property held upon trust for sale, calling
in and conversion, and the money or securities or the proceeds of the sale,
calling in and conversion are not by law or in equity considered as land.
- Lowther v Bentinck- debts were paid through advancement.
- Pilkinton v IRC- the advancement was to benefit outsiders which the court
held to be ok as long as it benefits the beneficiary.
- Re Paulings settlement trust- spending money that was meant to be for the
child to pay off debts and they were also using it to live an extravagant life.
They were held liable and were required to pay back the money. Both the
trustees and the parent were held liable.
3. The power of investment
- It’s the power to maintain and increase the value of the trust.
- They can either focus on income or the capital of the trust.
- The two things to consider in this power is:
o Regard for the need for diversification
o Trustees have to get written advice
- Power to delegate the trust function.
- They can still be held liable even though they delegate the tasks.
- Video- Bernie Madoff- scamming of America.

Running trusts article

- IPID- trust that applies to the living trust

- A well drafted trust allows the trustees to use part of the capital amount for
the benefit of the spouse.
- Berger v berger- trustee went against their duty as a trustee by manipulating
the capital growth of the capital.
- If you are both a trustee and a beneficiary, you ae more likely to be swayed
by your interest than your duty.
- Kane v Radley-Kane- wife appropriated money from her sons as she was the
trustee and one of the beneficiaries. She was enitttled to the statutory legacy
and a life interest in half of the residue estate. She appropriated share worth
50000 pounds. She was caught be the self-dealing rules.
- Limits of the self-dealing rule:
o Declare it
- Difference betweena financial and non-financial benefit- don’t only think
about the monetary value of the capital, you need to way their interest even
though they are not financial.
- Brudenell-Bruce v Moore- Lord Cardigan, one of the beneficiaries of a
family trust, made various allegations of breach of trust in relation to failure
to maximise trust income and had been paid unauthorised income on the
trust.
- Read the king article.

Breaches of trust
- Any act or omission by a trustee that takes the trustee outside the of the
terms of the trust or their duties as a trustee.
- Liability is strict
- Trustees are not liable for breaches of fellow trustee unless they have
intentionally allowed or facilitated those breaches.
- Trustees are not liable for breaches committed before their appointment or
after their retirement, unless they retired in contemplation of a particular
breach taking place
- An exemption clause in a trust deed may give a trustee complete protection
against any action for breach of trust, provided the breach was not dishonest.
- Notes on this plus the slides after
- Look at the marriage act.

Detail the contribution of the law of equity to modern day purposes

- Equity came as an answer to common law rigidity. These are:

1. New remedies- in addition to existing common law remedies e.g
specifi performance. Show how it adds on to the common law remedy
of damages.
2. Auxiliary jurisdiction/ new procedures- e.g supbeana of witness to
testify. Before they had to arrest you to take you to court.
3. Equitable rights- trusts- e.g constructive trusts- it would be
unconscionable for the person named to be the sole owner so the law
dev a constructive trust.
- Equity and common law are now fused. There are certain things that
equity has not cured e.g backlog of cases and unjust rulings.
- Remember to link the answer to the question.

Position of equity in kenya’s new constitutional dispensation.

- Natural fairness/ doctrines of equity- saying what equity is

- Doctrines of equity- Judicature act section 3(1)(c)- applies in so far as
the circumstances and the inhabitants of kenya allow- Busaidi v Busaidi,
- How it was applied- cretny’s article.
- Natural fairness- Article 2(1), Article 2(5) of the judicature act, use
cases to law.
- Issues: article 2(4), customary law and religious law. Section 3(2) and its
conflict with the constitution.
- Conclude by saying what is clear and what is no clear.
A lay person must not write their own will due to the inevitability of
uncertainty, but should seek professional advice. Discuss this statement
with reference to the three certainties.

- Agree/ disagree
- 3 certainties: KNIGHT
o Intention- re adams
o Subject matter-
o Objects – fixed v discretionary. Discretionary test.
- Intestacy rules- if the above fail.
- Give both sides of the argument.