Trusts Law: Legal Advice, Essay Example

The assets in clause 5 of the will are conditional gifts, and there is a condition precedent attached to these gifts. The gifts in this clause can only become contingent upon the happening of an event which is the death of the dog mentioned in clause. In this regard, therefore, the gifts are not available for immediate removal and can only be removed upon the death of the dog. A condition precedent is a condition that must happen before the gift takes effect. Availability of the gifts in both clause 5 and clause 8 are contingent upon the death of the dog, and these gifts will not vest unless and until the dog dies. As a general rule, an interest in a will can only vest where it is given to an ascertainable individual, and the gift is not subject to a condition precedent.[1]

In its decision, in Re Robertson, [2] the supreme court of Canada observed that all estates are to be considered vested unless there is a condition precedent to the vesting and such a condition is expressed clearly. In case of the existence of conditions precedent then the courts cannot avoid the precise terms of such a condition. However, a condition precedent cannot be illegal or contrary to public policy. A condition that is illegal or contrary to public policy is void and renders the gifts available for immediate removal. The court in University of Victoria Foundation v. British Columbia Attorney General, [3] held that the gift in question was not contrary to public policy and in order to apply public policy the relationship in consideration must be one that is public in nature. Where the conditions are established by private citizens the concept of public policy plays no significant role in the determination of the validity of the condition precedent. The conditions in neither clause 5 and 8 of Abigail’s will are neither illegal nor are they against public policy; therefore, such gifts are valid.

A condition precedent can also be invalidated by impossibility or uncertainty of performance. Where the condition precedent is impossible to perform such condition is disregarded and the gift is made available for immediate removal. In regard to clause 5and 8 in Abigail’s will, the conditions are not impossible and, therefore, the gifts are subject to these conditions.[4] Uncertainty can also invalidate the conditions thus rendering these conditions void. Void conditions are avoidable and where such conditions are uncertain the gifts are available for disposal immediately. However, the conditions precedent in Abigail’s will are certain and, therefore, the gifts are not available for removal immediately but only upon the occurrence of the precedent condition.[5]

Given the impact of the alternative dispute resolution deed there are reasons for the parties to proceed to negotiation. The alternative dispute resolution deed clearly provides that the parties are to adopt alternative dispute resolution mechanisms prior to resolving their issues in a court. The alternative dispute resolution deed is binding to the parties and these parties must engage in alternative dispute resolution before going to court. Aside from the agreement to resolve disputes between the parties by use of alternative dispute resolution, it is noteworthy that there are more benefits to alternative methods as contrasted to the use of the court process in dispute resolution.[6] In order to preserve the privacy and harmony of the family, it is imperative that the individuals in the dispute employ alternative dispute resolution mechanisms. The existence of conditions for negotiation additionally supports this value for the parties to negotiate. These merits for negotiation include the readiness and willingness of the parties to the conflict to negotiate. The existence of the alternative dispute resolution deed signifies the willingness of the parties to negotiate while Conrad, despite his institution of proceedings in the Supreme Court, remains open to a negotiated resolution to the conflict. The parties to the conflict also have the authority to negotiate since they are beneficiaries of the will in which the conflict arises. Moreover, negotiations are not costly and do not require a lot of time as compared to litigation; therefore, it is prudent that the parties negotiate.[7]

It is also essential to note that the outcome in such negotiations are binding to the parties and can prevent a court from resolving any proceedings that arise out of the dispute. The outcome of the negotiation is essentially a contract between the concerned parties on what is best in their circumstances. Alternative dispute resolution is of two types either binding or non-binding. Binding alternative dispute resolution is more formal and leads to a result that is binding and can be imposed on parties.  On the other hand, non-binding alternative dispute resolution is where parties seek to resolve the conflict between them with the result of the process being binding on the parties only if they come to an agreement.[8]  Where all parties agree with the outcome of the negotiation and such agreement is not coerced or obtained by way of deception the agreement is binding to the parties, and the courts may not interfere with this agreement.  A negotiation process often concludes with a contractual agreement on the position of the parties to the dispute and this agreement binds the parties to the dispute. Where there is mutual consent on the outcome of the negotiations, then the outcome is valid and cannot be avoided by parties.[9] With regard to the negotiations between Remington, Conrad and Olivia their negotiations are non-binding but upon agreeing on the conflict issues their negotiations become binding.[10]

The negotiation process requires adherence to a predetermined plan to ensure timely and acceptable outcome. In order to conduct effective negotiations, it is critical that the individual’s party to the negotiations first identifies the pertinent issues to the conflict.[11] The relevant issues in the conflict between Remington, Conrad and Olivia, are the implications of clause 5 and 8 of the will. Olivia’s view is that clause 8 is invalid, whereas Conrad insists that the property is available for immediate disposal while, on the other hand, Remington is happy to abide by the wishes in the will.  The clauses in contention provide that the property can only be available for disposal after the death of the testator’s dog, and the contention is that the property is available regardless of the dog. The objective of the negotiation process is to come to an agreement on the availability of the property under these clauses and whether the condition of these clauses should be disregarded.[12]

In order for the negotiations process to be successful, the parties should assess their perceived needs. The interests of the parties in this regard play a central role, and it becomes vital to identify these interests.  The interests of the parties in the dispute concerning the will are different.[13] The interest of Conrad is that the property under clause 5 is subject to immediate removal from Mosswood Manor irrespective of the condition regarding the dog and that the beneficiaries of the property have the right to claim it immediately.  Olivia, on the other hand, is interested in the property provided for by clause 8 and in her view providing trust for the dog is unacceptable. However Remington’s interests are that the will should be executed as it is and no alterations to the conditions in the will should be made.[14]

The settlement options available to these parties are executing the will as it is, invalidating clause 8 of the will and making the property in clause 5 available for immediate removal from Mosswood manor. The alternatives available to the parties are dissimilar, and each party must identify their best and worst alternatives. As such, the best alternative to a negotiated agreement (BATNA) available to Remington is that Abigail’s wishes will be respected, and no modifications will be made to the will. His worst alternative to a negotiated agreement is that clause 8 of the will shall be invalidated, and property in clause 5 shall be available for immediate removal from Mosswood.  Olivia’s BATNA is invalidation   of   clause 8 of the will while her WATNA is executing the will as it is. Similarly, Conrad’s BATNA is making the gifts under clause 5 available for immediate removal while his WATNA is executing the will without alterations to the condition in clause 5.[15]

Bibliography

Alvin L. Goldman and Jacques Rojot, Negotiation: theory and practice (Kluwer Law International, 2003).

Carraro, Carlo, Carmen Marchiori, and Alessandra Sgobbi, ‘Advances in negotiation theory: bargaining, coalitions and fairness.’ (2005)  Nota di Lavoro, Fondazione Eni Enrico Mattei 66.

Gordon Brown and Scott Myers, Administration of Wills, Trusts, and Estate (Cengage Learning, Australia, 2008).

James Kessler and Leon Sartin, Drafting Trusts and Will Trusts: A Modern Approach (Sweet & Maxwell, 2010).

N.E. Renton, Family Trusts: A Plain English Guide for Australian Families of Average Means (John Wiley & Sons, Australia, 2012).

Rahwan, I., McBurney, P., and Sonenberg, L., ‘Towards a theory of negotiation strategy’ (2003) GTDT.

Robert Joseph Janosik, Negotiation theory: considering the cultural variable in the Japanese and American cases (New York University, Graduate School of Arts and Science, 1983).

Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving in (Houghton Mifflin Harcourt, 1991).

Ross, William, and Jessica LaCroix ‘Multiple meanings of trust in negotiation theory and research: A literature review and integrative model.’ (1996)  314 International Journal of Conflict Management.

Rubin, Jeffrey Z, ‘Negotiation Journal.’ (2009) 5 Negotiation Journal 25.

Russell Korobkin, Negotiation Theory and Strategy (Aspen Law & Business, 2002).

Steve Weisman, A Guide to Elder Planning: Everything You Need to Know to Protect Yourself Legally and Financially (FT Press, 2003).

Thompson, Leigh L., Jiunwen Wang, and Brian C. Gunia. ‘Negotiation.’ (2010) 491 Annual review of psychology 61.

Cases

Re Robertson (1937) S.C.R. 354 University of Victoria Foundation v. British Columbia Attorney General, 32 E. T.R. (2d) 298

[1] Steve Weisman, A Guide to Elder Planning: Everything You Need to Know to Protect Yourself Legally and Financially (FT Press, 2003) 123.

[2] (1937) S.C.R. 354

[3] 32 E. T.R. (2d) 298

[4] James Kessler and Leon Sartin, Drafting Trusts and Will Trusts: A Modern Approach (Sweet & Maxwell, 2010) 67.

[5] N. E. Renton, Family Trusts: A Plain English Guide for Australian Families of Average Means (John Wiley & Sons, Australia, 2012) 102.

[6] Gordon Brown and Scott Myers, Administration of Wills, Trusts, and Estate (Cengage Learning, Australia, 2008) 93.

[7] Alvin L. Goldman and Jacques Rojot, Negotiation: theory and practice (Kluwer Law International, 2003) 89.

[8] Robert Joseph Janosik, Negotiation theory: considering the cultural variable in the Japanese and American cases (New York University, Graduate School of Arts and Science, 1983) 78.

[9] Carraro, Carlo, Carmen Marchiori, and Alessandra Sgobbi, ‘Advances in negotiation theory: bargaining, coalitions and fairness.’ (2005)  Nota di Lavoro, Fondazione Eni Enrico Mattei 66.

[10] Rahwan, I., McBurney, P., and Sonenberg, L., ‘Towards a theory of negotiation strategy’ (2003) GTDT.

[11] Ross, William, and Jessica LaCroix ‘Multiple meanings of trust in negotiation theory and research: A literature review and integrative model.’ (1996)  314 International Journal of Conflict Management, 317.

[12] Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving in (Houghton Mifflin Harcourt, 1991) 48.

[13] Rubin, Jeffrey Z, ‘Negotiation Journal.’ (2009) 5 Negotiation Journal 25.

[14] Russell Korobkin, Negotiation Theory and Strategy (Aspen Law & Business, 2002) 136.

[15] Thompson, Leigh L., Jiunwen Wang, and Brian C. Gunia. ‘Negotiation.’ (2010) 491 Annual review of psychology 61.