General Principle:
The court will look at the meaning of the words, their true effect and at the intention of the testator as expressed in the will.
Comisky v Bowring-Hanbury [1905] AC 84, HL
Facts:
The testator gave to his wife “the whole of my real and personal estate...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 or my nieces as she may think fit and in default of any disposition by her thereof by her will or testament I hereby direct that all my estate and property acquired by her under this my will shall at her death by equally divided among the surviving said nieces.”
Ratio:
In construing a will the word of the testator must first be construed irrespectively of rules of law, real or imaginary and the whole will must be looked at in order to find out what the testator's intention was.
Application:
It was held that the testator intended to make a gift to his wife, with a gift over of the whole property at her death to such of the nieces as should survive her, shared according to the wife’s will, and otherwise equally. The testator did not create a trust. He left the property to the wife absolutely.
Difficulties with certainty of intention arise where a settlor or testator uses so-called “precatory” words. These are words which express a request, a hope, a desire, or a suggestion that the donee of the property will use in a particular way. The intention of the settlor must be certain otherwise the trust is not valid. The person in control of the property will be entitled to retain it beneficially.
Analysis:
The words must impart an imperative obligation on Abena; that is, the words must make it clear that she is obliged to hold the property for the benefit of the children. There has been a gradual hardening of attitude by the courts as to how precatory words are to be construed. In Lamb v. Eames (1871) LR 6 Ch 597 a bequest “to be at her disposal in any way she may think best, for the benefit of herself and her family” was ineffective to create a trust and the widow took the property absolutely. In Re Hamilton [1895] 2 Ch 370 per Lopes LJ it was said “The courts will not allow a precatory trust to be raised unless on the consideration of all the words employed it comes to the conclusion that it was the intention of the testator to create a trust.” Similarly, in Re Adams and the Kensington Vestry (1884) 27 Ch D 394 the court stated that they had to “look at the whole of the will which he will have to construe.” The court is likely however, to take the Comisky v. Bowring-Hanbury approach and deem Berko wanted a discretionary trust for his children and there is therefore certainty of objects.
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