INTRODUCTION

This essay examines the area of trust law not from a rehash of the elements although some
explanation will be necessary to ground the essay. Sufficiency of the discussion will be had in
explaining the contentious issues that could arise when an attempt is made to combine the
elements1 but failure occurs. The essay will discuss the elements generally, acknowledging the
Commonwealth Caribbean is the epicenter for the discussion with focus on Jamaica, Barbados
and Trinidad. The basis of the investigation proposes a summary of each case, identification of
the contentious elements and explanation of how the law has been able to satisfy the accepted
construction of the trust. Statute which may be applicable to identify the element(s) that have
failed to combine in the construction of the trust will also be looked at.

Trusts Generally

Simply put a trust is a relationship between the donor of the trust property, the trustee and
beneficiary. The relationship is premised on the legal transfer of property to a trustee whereupon
that property is equitably held for the trust's beneficiaries.2 The structure alluded to is achieved
by certainty in Knight v Knight3 but whose origins can be traced to Wright v Atkyns.4
Constitution has is often fraught with difficulties. A fuller explanation might be in order.
Essentially it (constitution) is the legal transfer of the trust property to the trustees. This property
can be personalty where merely handing the property to the trustees is sufficient but must
comprise intention, delivery and acceptance as in Re: Cole.5 When dealing with shares it is
understood until a transfer document has been completed and the company has lodged the
change of ownership that transaction is incomplete.6 Where the property is land or an equitable
interest in land, it must be transferred by writing in accordance with the Law of Property Act.7
Additionally capacity which is a bar to the construction of a trust involves one of two issues
namely whether the person is a minor or whether the person has mental issues are important.

1
By elements this essay is referring to certainty, capacity, formality and constitution.
2
Alastair Hudson, Equity and Trusts (6th ed. Routledge-Cavendish 2009)
3
(1840) 3 Beav 148 Langdale MR explained that Certainty of intention: it must be clear that the testator intends to
create a trust, Certainty of subject matter: it must be clear what property is part of the trust and property and
Certainty of objects: it must be clear who the beneficiaries (objects) are.
4
(1823) Turn & R 143, 157
5
([1964] 1 Ch 175
6
Milroy v Lord (1862) 45 ER 1185
7
1925 s 52 (3)
Finally formality is not necessary to create an express but may be dependent on the subject
matter. The exceptions are concerning the sale of land, the disposal of an equitable interest and
the creation of a testamentary trust.
Jamaica

In the case of Carlene Miller v Harold Miller8 a number of exciting issues are presented but what
is of concern to this essay is the transfer of property by the parties to their children. As usual
context is necessary and a brief summary is required in the circumstances. The husband and wife
entered into an agreement for the dissolution of their marriage incidental to the process was the
establishment of a trust for the minors in Jamaica.9 Issues arose as to jurisdiction10 needless to
say that is not within the purview of the essay what is however is the true construction of the
trust and its ability to withstand scrutiny. Almost immediately the alarm was raised as to the
robustness of the construction.11 It is the view of the essay that certainty of intention, subject
matter and objects were brought into question as well as constitution.12

The learned judge in the matter raised the issue of the word neutral trustee, as a qualifier,
adding another layer of agreement.13 Essentially asking who is a neutral trustee and by what
standard would the trustee be measured. The learned judge concluded that a failure to settle its
terms causes the agreement to fail for uncertainty.14 This outcome in the circumstance is
acceptable but conceptual uncertainty has attracted a solution. Three devices have been deployed
to resolve problems of potential uncertainty. These are: the deed can provide direction as to who
is or is not a beneficiary as approved in Re Tuck's Settlement Trusts.15 To give the trustees

8
[2015] JMSC Civ. 18
9
Ibid 8 para [3] The parties shall transfer Top Hill into a trust for the parties' three minor children. The transfer
shall include both the lot and the house and the lot bounded as follows... The parties shall agree upon a neutral
trustee. Defendant Husband shall have the right to occupy the upstairs apartment for a period of one year until
November 30, 2009. Upon vacating the property, the Defendant Husband shall not remove fixtures or appliances.
The current physical structure shall remain the same except for reasonable wear and tear. Downstairs shall be
rented and the rent shall be paid to the trust. The first rents collected shall be utilized to pay legal fees and costs
associated with the transfers to effect the trust.
10
Halsbury's Laws, Conflict of Laws, para. pp. 385391 In law, the situs (Latin for position or site) of property is
where the property is treated as being located for legal purposes.
11
Ibid 8 para. [135] whether Clause 15, as it relates to Top Hill is inconclusive, incomplete, uncertain and lacks
finality. This is the defendants force de resistance, and in my view, it is unassailable.
12
Ibid 8 para [136] There cannot be a trust without a trustee, and importantly there is no agreement on who the
neutral trustee should be or how the trustee would be appointed.
13
Western Broadcasting Services v Edward Seaga (2007) 70 WIR 2013,
14
It could be of the form conceptual uncertainty, evidential uncertainty, ascertainability and administrative un-
workability.
15
[1978] 2 WLR 411 as per Lord Denning stating "any conceptual uncertainty" was "cured by the Chief Rabbi
clause."
power to decide who is or is not a beneficiary. Note that this was condemned in Re: Coxen16
Jenkins J argued that it would not make sense to go through the trouble of setting up a trust to
leave the ultimate responsibility to trustees in an effort to save the trust. The trustees are given
the power to give trust property to "anyone" or to "anyone whom the trustees consider
appropriate". This could firstly, render the trust administratively unworkable because the class
could be too broad and second, the courts are unable to judge if the power has been exercised
appropriately.17 However, in Re Hay's Settlement Trust, Megarry V-C held that, exercised
properly, this sort of agreement could be administratively workable, and would not be
immediately void.

It is observed that the outcome has been consistent with the fundamentals of interpreting the
trust. It will be interesting if a different outcome is proffered using the same.

16
[1948] Ch 747
17
This could mean that some objects receive more than other or none at all.
Barbados

The trust instrument can often reside in a will and although well intentioned if not properly
constructed can serve up some unintended consequences arising as being effective only after the
death of the testator. In the case of Elcock et al v Elcock18 the area of capacity is examined in an
effort to untangle the issue seized by the court. Once again to set the context some background is
required.

This case surrounded the creation of two wills the first dated March 3, 2001 where the testatrix
not only appointed the defendant Athiel Anderson Elcock as her sole executor, but named him as
the sole beneficiary of her entire estate19 and the second where the testatrix appointed the
plaintiffs Vida Enel Elcock and Yvette Oneta Elcock jointly as Executrices and Trustees of her
estate.20 The testatrix is alleged to have been suffering from Parkinson disease and diabetes prior
to death. Needless to say the defendant denied that the Last Will and Testament was the Second
Will dated September 6, 2001. He alleged that her last will was instead the First Will executed
on March 3, 2001 appointing the defendant as her sole executor and naming him as the sole
beneficiary of her entire estate.21 In an effort to assert his claim he called the capacity of the
settlor into question. As previously stated capacity is a bar and seeks to determine the ability of
the person to enter into such arrangements. The law has sought in this circumstance to exclude
minors and mentally incapable persons for obvious reasons.

The common law test for capacity necessary to execute a valid will was set out at in Banks v
Goodfellow22 and confirmed recently in Walker v Badmin.23 The result handed down by the
learned judge is in line with the common law position of determining the facts which bore out
her ability to articulate her wishes to the attorney; she indicated the nature and location of the
property, she signed the will giving effect to her wishes and although suffering with Parkinsons

18
BB 2013 HC 27
19
Ibid 18 [6]
20
Ibid 18 [3]
21
Ibid 18 [6]
22
(1870) LR5 QB 549 where it was established that the testator must: Understand the nature of making a will and
its effects. Understand the extent of the property that he is disposing of. Be able to comprehend and appreciate
the claims to which he ought to give effect. Have no disorder of the mind that negatively affects his sense of right
or prevents the exercise of his natural ability to dispose of his property by will.
23
[2014] All ER (D) 258
the disease on the face of it had not impaired her capacity to make the decisions concerning her
estate.24

The essay observes again the ability of the common law to innovate solutions to such a degree
that it has found favour ahead of statute.25

24
Ibid 18
25
Mental Capacity Act 2005 where in the UK questions about the test set out in sections 1 to 3 of the Act has been
questioned.
Trinidad and Tobago

Once again a will is under examination but with a small difference although capacity is under the
microscope the operation of statute is indeed instructive as another means of untangling the
difficulties surrounding the elements. As per usual some background is necessitated to establish
context. In the case of Michael Johnson (Executor) and Andrea Rosario Sosa Peguero v Selwyn
Byer26 the case surrounded the estate of Everard Byer and pitted a will purported to have been
created prior to death and a Deed of Gift made to his brother during the time prior to his death.
Miss Peguero claimed a relationship to the deceased and further to that purported to be in
possession of a will that vested the deceased property to her. His brother claimed that he was the
sole beneficiary by way of Deed of Gift. Timing was essential and although they were a number
of inconsistencies in the arguments on both sides what is of import to the essay is the application
of statute.

The Registration of Deeds Act CAP 19:06 essentially raised a number of issues namely the Act
requires that the Deed be attested to by a witness who was not party to the Deed,27 the person
executing the Deed to sign it,28 that the witness prove the execution by either annexing an
affidavit or making a declaration at the foot or margin of the Deed.29 Essentially the actions
accords to a large extent with the transfer of title of property under the LPA 1925. Structure in
the statute accords to the formality previously discussed and constitution where the transfer of
property is done in writing. The learned judge was able to establish Any Deed, although it is not
required by law to be registered, may at the option of any party to the Deed be registered under
this Act.30

Clearly the ability of the statute to order the operation of a trust instrument was clear, concise
and easy to follow. It must be noted that the instant case is the most recent in Trinidad and may
go to appeal.

26
Claim No. CV201604361
27
See s (3) of the Act
28
See s (6) of the Act
29
See s (11) of the Act
30
See s (4) of the Act
CONCLUSION

This essay attempted to show via case law and statute the inner workings of the elements that
make up a trust. The investigation looked at trusts generally before turning its attention to the
inner workings stopping at three Commonwealth Caribbean states. In Jamaica certainty of trust
was examined and the way the common law has been able to make a trust work in certain
circumstances. In Barbados capacity was examined and this raised the required test to establish
capacity. Finally in Trinidad and Tobago there was an application of statute to a 2017 case
engaging the formalities of transfer of title of certain assets. Although not yet completed it
showed how statute was able to examine the evidence and make a determination in the
circumstances.