Precatory words, Love and the law of equity

In Australia, it is well-established (see eg Paul v Constance) that the creation of a trust requires a sufficiently clear manifestation of intent on the part of the supposed settlor (the ‘certainty of intention‘ requirement). Generally, the requisite intention is said to be evinced by the use of language bearing a sufficiently imperative character.

The rationale underpinning this requirement is fairly self-evident. A trust gives rise to a not-insignificant personal equitable obligation upon a trustee to deal with property in a certain way (in good faith for the benefit of the trust’s beneficiaries). It follows, naturally, that such a relationship ought to be founded in terms reflecting the obligatory nature of this arrangement.

Consistent with this position, Re Williams establishes that precatory words (words of prayer, expressing desire or hope) are insufficient to give rise to a trust. In that case, upon his passing, Dr Williams left his estate to his wife ‘… absolutely, in the fullest confidence that she will carry out my wishes ’ (that their daughter be provided for with the proceeds of certain life insurance policies).

At first blush, Dr Williams’ statement seems (at least to me) to be entirely consistent with an intention to create a relationship of trust in a familial setting. This is not to say that I believe that Dr Williams’ language can only be interpreted as being suggestive of such an intention, but it seems strange (to me) to think that a person in a truly loving relationship would adopt firmer, more imperative language when speaking to or of his partner. Indeed, it would be stranger (to me) to think of a person in a such a relationship commanding their partner to do anything.

This was not, however, the view adopted by the court. Instead, Lindley LJ held Dr Williams’ words to be insufficiently clear and definite to enable the court to ascertain the precise obligation intended. Therefore, there was no trust in favour of the Williams’ daughter, Lucy.

The line of authority from Lambe v Eames to the present day seems to be founded upon a concern that the imposition of trust obligations is often onerous and undesirable – particularly in cases where the question arises in the context of the interpretation of a husband’s bequest to his wife.

However, pre-Lambe cases are not the only ones to suggest that there may yet be some potential for precatory words to evince a sufficiently certain intention to support the creation of a testamentary trust. Comiskey v Bowring-Hanbury, for example, demonstrates that even post-Lambe precatory words can give rise to trust obligations where consideration of the entirety of the instrument in question leads to a conclusion that a legally enforceable obligation was intended.

Similarly, Waters’ Law of Trusts in Canada, 4th ed. suggests that “If language, once construed, is held to intend a trust, then whether the language is precatory or otherwise, the trust which is thereby set up is the same as any other express trust, and no different rules apply” and cites Rigby LJ’s observation that the term ‘precatory words’ is itself “a misleading nickname”.

The key question seems to be whether evidence of a request can be sufficiently clear and unambiguous in evincing an intention to create an obligation. This should be the legal question, rather than whether a request can be as clear and unambiguous as a direct command.

I would argue that the request “Can you please unstack the dishwasher?” can be equally compelling as the command “Unstack the dishwasher.” I would even argue that the statement “It would be wonderful if you unstacked the dishwasher,” while precatory, is likewise compelling upon a truly loving partner.

I would never contemplate commanding my partner to do anything – because I love and respect her. Does this mean that she is never under any moral obligation to help out around the house? I would suggest that the fact of our relationship, and our love itself, encompasses many shared moral obligations and responsibilities. A truly loving relationship is unique in this was, and the law should recognise this.

The recent High Court case of Thorne v Kennedy raises a similarly interesting question about the law’s understanding and treatment of love and affection. In sum, this was a case in which a pre-nuptial agreement between an Australian man and his online bride was found to be invalid on a combination of various grounds including duress, undue influence and unconscionable conduct.

One of the key issues in Thorne v Kennedy was whether the bride in question could have, of her own volition, rejected the legal advice given to her that she should not sign the agreement. The majority answered this question in the negative, finding that Ms Thorne (a pseudonym) could not have done so, and had only agreed because her will was overborne.

This, to me, seems a dangerous leap in logic – particularly given that it was unnecessary to decide the case. As Justice Gordon found, it was open to the Court to find that “Ms Thorne’s capacity to make an independent judgment was not affected” while also finding that Mr Kennedy (also a pseudonym) had unconscionably taken advantage of her emotional and financial dependence on him.

The value of this approach is purely one of principle. It turns on one’s conception of love and understanding of what it may mean to individuals. To me, love is inherently selfless. To love someone is to put their needs and wants above your own. It can compel you to do things you otherwise wouldn’t, even when they seem to come at a personal cost. It can seem foolish to observers. It can seem irrational. And yet, when you feel it love makes perfect sense.

On one hand, this might be a conception of love that is too noble and too idealistic. But we should not resile from noble ideas simply because it seems that they may be difficult to sustain. We might accept that not all loving relationships are so full and complete, and thus arrange our laws accordingly, but this should not mean that the law is closed to the possibility that some relationships are truly loving to such a noble extent.

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