TUTORIAL - 3 Certainties (Sample Answer)

8/11/2019 TUTORIAL - 3 Certainties (Sample Answer)

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2004 Zone A Question 1

Fred, a former Professor of Law at Trinity College London (TCL),

made the following bequests in this will:

a. !",""" to my e#e$utors on trust for su$h hard%wor&ing lawstudents of TCL as they in their absolute dis$retion thin& 't. n $ase of

any disute as to who is hard%wor&ing, the *ean of the TCL Law

Fa$ulty to de$ide+

b. "",""" to my e#e$utors on trust to ro-ide snoo&er tables in the

TCL student union+ and

$. my e#e$utors to allow any outstanding legal a$ademi$ to ur$hasemy law library for "",""".

Fred has now died. d-ise the e#e$utors on the -alidity of these gifts.

Note: I am extremely cautious with regards to providing students with

sample answers to tutorial uestions! "he #ear is that students will

uni#ormly reproduce memorised answers in examination on a similar topic!

"his is something that the $niversity o# %ondon examiners stronglydiscourage! It is #or this reason that I will &eep sample answer handouts

such as this one to a minimum! It would 'e more pro#ita'le #or students to

attempt the tutorial uestions on their own and then consult with their

lecturers(tutors #or #urther guidance a#ter they do so!

"he #ollowing sample answer is only provided to students as a guide in how

they should structure their answers! In other words) it is more important to

ta&e note o# how the sentences) paragraphs and arguments are structured

'elow! *tudents should pay care#ul attention to the seuence o# ideas and

how arguments are su'stantiated with authorities #rom cases and academic

writing!

I do not ma&e any pretensions to o##ering you a +per#ect, answer to the

examination uestion a'ove -indeed, in a discussive/reflective question, it is

doubtful if there really is a perfect answer at all!.! *tudents are there#ore

encouraged to use the sample only as a guide! It is my #irm 'elie# that

conscientious students should 'e a'le to produce 'etter scripts than the one

o##ered 'elow!

%aw o# "rusts / "utorial - ertainties. *ample Answer

repared 'y 3dmund %au age 1 o#


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/amle nswer:

Fred0s e#e$utors would li&e to &now whether the bequests in the will are -alid in order

to roerly $arry out what Fred intended in the will. /hould any of the bequests be in-alid,

the roerty in question will then go to Fred0s residuary estate. Following the guidelines laid

down by Lord Langsdale in night v night -1540., the $ourts will not erfe$t imerfe$t

gifts and it is imerati-e that for a gift to be -alid, it must be $learly shown that the testator

(in this $ase, Fred) had intended it to be su$h and that the e#e$utors must also be $ertain as to

the sub1e$t matter and the ob1e$ts of the gift.

a! +hard wor&ing law students,:

n the first bequest, it $ould be gleaned on the wordings that Fred intended to $reate a

dis$retionary trust. There does not aear to be any un$ertainty on the sub1e$t matter

(!",""") as well. The roblemati$ area seems to be the question of whether hard-working

law students of TCLis a suffi$iently $ertain des$rition of the ob1e$ts of the trust.

s this is the $ase $on$erning a dis$retionary trust, the test for $ertainty of ob1e$ts,following 6chail v 7oulton -1890. is the any-given-postulant test. n effe$t, this

basi$ally re-erses the burden for e-idential $ertainty uon the ostulants themsel-es, rather

than to lay it uon the trustees (although it is imortant to note that Lords /a$hs, /tam and

2egaw in e ;aden -No! 2. -1892.roosed different tests as to how the $ertainty is to be

determined). That being the $ase, Lord 3ilberfor$e (in 2$Phail) emhasised the imortan$e

of $on$etual $ertainty, desite the re-ersal of e-idential burden. n other words, it is still

ne$essary for the trustees to be able to determine with $ertainty what e#a$tly Fred meant by

hard working law students of TCL.

4ere, it is submitted that Fred has gi-en no guidan$e as to what he meant by 5hard

wor&ing law students of TCL0. The 5hard wor&ing0 qualifier, it is argued, is re$isely the sortthat !"! 3merydefined as a hopelessly wide conceptsu$h as a good citizen.

The only assistan$e ro-ided by Fred is that referen$e $an be made to the *ean of the

TCL Law Fa$ulty should there be any disute on the meaning of hard working law students

of TCL. The question is whether su$h an e#ternal referen$e to a third arty should be allowed

for a trust. $$ording to Lord *enning in e "uc&,s *" -1895., a referen$e $ould be safely

made to a third arty (su$h as the Chief 6abbi) in order to 5$ure0 $on$etual un$ertainty.

4owe-er, it should be noted that in 6e Tu$&0s, none of the other 1udges aro-ed of this

aroa$h. Furthermore, the $ase in-ol-ed a gift rather than a trust and it was also held that

there was no $on$etual un$ertainty in that $ase.

ro#essor


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'! +snoo&er ta'les,:

s for the se$ond bequest, as there does not seem to be any roblems with $ertainty of

sub1e$t matter (5"","""0) and who Fred intended to benefit (5the TCL student union0), the

essential question is what e#a$tly was intended by Fred. 9n the a-ailable wording in his will,

it aears that Fred intended that his trustees use the funds to ro-ide snoo&er tables for thestudent union. This aears to be a 5ri-ate urose trust0 8 i.e. that the trustees use the trust

roerty in order to a$hie-e a se$ified urose, namely, the ro-ision of snoo&er tables for

the student union.

The rule, following e 3ndacott -18=0., is that a trust for a non%$haritable ri-ate

urose will not be uheld by the $ourts. n that $ase, Lord -ershed held that in a ri-ate

urose trust where there are no as$ertainable benefi$iaries, there will be no one to enfor$e

the trust. Therefore su$h trusts (sa-e for a -ery narrow $ategory of e#$etions 8 i.e.

5anomalous ri-ate urose trusts) would fail as they -iolate the 5benefi$iary rin$ile0 of

trusts, in that trusts are -alid only when they are enfor$eable by benefi$iaries.

;off 7, howe-er, argued in 6e *enley that should the ersons who deri-ed a benefit

from the ri-ate trust be as$ertainable, su$h trusts should be uheld. n that $ase, the ersons

that the settlor intended to benefit were the employees of the company. 4owe-er, ;off 7 was

determined to uhold the 5benefi$iary rin$ile0 and therefore the trust failed. 9n the wording

in Fred0s se$ond bequest, it does aear that the student union of TCL is $loser to the

situation in 6e *enley rather than the imossibly wide obligations in 6e stor (where the

urose was a -ague one 8 5romoting freedom of the ress, et$.0).

That being said, it is argued that ;off 7 is robably wrong in his aroa$h. 4e -ery

$on-eniently equated people for whom the trust was intended to benefit with the

beneficiariesunder a trust. This, it is submitted, is a fundamental error as a benefi$iaryunder a trust holds a benefi$ial interest in the roerty of the trust, but not so the 5eole that

the trust was intended to benefit0. t is re$isely be$ause of su$h a benefi$ial interest that a

benefi$iary is allowed to enfor$e a trust at all.

n $ontrast to the aroa$h of ;off 7, it is argued that an 5enfor$er rin$ile0 would

ma&e mu$h more sense. n other words, a ri-ate urose trust C9


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similar to the situation in e ;arlow,s >" -1898., where =rowne%3il&inson 7 uheld su$h a

bequest allowing the 5friendsof the testatri# to ur$hase her aintings at below mar&et -alue.

=rowne%3il&inson 7 e#ressly said that should it be a trust that was intended, 5friendswould

fail for $on$etual un$ertainty of ob1e$ts. 4owe-er, it was uheld be$ause it was only a gift

with a $ondition re$edent.

That being the $ase, it is not entirely $ertain that the $ourts will $ontinue to adot the

aroa$h of =rowne%3il&inson 7 abo-e. The de$ision has been sub1e$ted to se-ere a$ademi$

$riti$isms, $hiefly by !"! 3mery, who argued that the testatri#0s dire$tion should not ha-e

been $onstrued as a series of indi-idual gifts to 5friends0 but as a ower $onferred on the

trustees by her will to sell to her 5friends0. The situation would then be quite different as the

test for $ertainty of ob1e$ts for a ower is that of e ?ul'en&ian,s *ettlement -1890.whi$h

is the any-given-postulant test requiring $on$etual $ertainty. /hould that be the $ase,

5friendsin 6e =arlow and outstanding legal academicin Fred0s will would li&ely be held

to be $on$etually un$ertain.

n other words, whether or not Fred0s third bequest is -alid would deend entirely on

how the $ourt de$ides to $onstrue Fred0s dire$tion. /hould it be $onstrued as a gift with a$ondition re$edent (following 6e =arlow), it would li&ely be -alid. 4owe-er, if the $ourt

$onstrues it as a ower to the trustees to sell Fred0s law library at "",""" to an outstanding

legal academic, it would li&ely be in-alidated on the grounds of $on$etual un$ertainty.

%aw o# "rusts / "utorial - ertainties. *ample Answer

repared 'y 3dmund %au age 4 o#

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TUTORIAL - 3 Certainties (Sample Answer)