TUTORIAL - 3 Certainties (September 2012)

8/11/2019 TUTORIAL - 3 Certainties (September 2012)

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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 law students of TCL as they in

their absolute dis$retion thin& 't. n $ase of any disute as to who is hard%wor&ing, the *eanof the TCL Law Fa$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$hase my law library for

"",""".

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

/#aminer0s 1eort:This roblem question on the substanti-e requirements of a -alid trust was generally oorly

done. t had three arts.

n the 'rst, there was an issue of $ertainty of ob2e$ts and whether $on$etual un$ertainty

$ould be $ured by a referen$e to a third arty. s to the former, $andidates seemed able to

state the -arious tests in re Badenbut were singularly unable to aly them. s to the latter

oint, many $andidates were simly $ontent to state that Professor Haytondid not aro-e

of $lauses allowing third arties to be the 2udge. 3ut whether Professor Haytonaro-es of

su$h $lauses or not is nowhere to the oint+ what matters is whether there are arguments

either for or against su$h a $lause. 4any $andidates wasted mu$h time dis$ussing issues of

$ertainty of intention and of sub2e$t%matter, desite the fa$t that neither oint was$ontentious.

The se$ond art of the question $on$erned a ri-ate urose trust, although few $andidates

saw this, and e-en fewer saw 't to dis$uss the $orre$tness of re Denley.

The third art of the question raised the issue whether re Barlows WT was $orre$tly

de$ided, but again this was generally ignored. n this rese$t, $andidates $ould do no better

than re%read the imortant arti$le by Emery 1!"2# !" $Q% &&1.

Law of Trusts Tutorial (3 Certainties) Page 1 ofPrepared by Edmund Lau


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200& Zone A Question &

ssess the -alidity of the following testamentary gifts in the will of Fred:

i. any of my relati-es may ur$hase one of my antiques at half its mar&et -alue+

ii. my shareholding in Lawtel l$ to be sold and the ro$eeds held on trust for the edu$ation

of my nie$es and nehews, whate-er funds being unne$essary for this urose to be held on

trust for su$h $haritable or bene-olent uroses as my trustees shall sele$t+

iii. the residue of my estate to be held on trust for su$h ersons and in su$h amounts as my

trustees shall at their absolute dis$retion sele$t, sa-e that nothing is to go to my trustees or

their ne#t of &in or to my souse or my $hildren.

/#aminer0s 1eort:

This was a three%art roblem question whi$h as&ed $andidates to assess the -alidity of three

testamentary bequests.

(a)The first bequest was almost identi$al to the gift in %e Barlows WT. This is not a trust,

but, if re Barlows is followed, a series of gifts sub2e$t to a $ondition re$edent, where,

a$$ording to that $ase, the standard of $ertainty go-erning the $ondition is less than that

go-erning the $ertainty of ob2e$ts of a trust+ still, both the $ertainty of 5relati-es0, drawing

uon Baden 'o( 2, and 5antiques0, should be $onsidered. good answer would ha-e referred

to the $riti$isms of this $ase made by Emery 1!"2# !" $Q% &&1.

(b) 6nder the se$ond bequest, the $entral issue was how the urose in the dire$tion was to

be $onstrued+ a good answer would ha-e $onsidered %e )anderson, %e Andrews, %e A**ot

+und Trusts, %e ,so*a(but note, here there was a gift of the remainder), and the 5whate-eris left0 trust line of $ases, )-ran.e / Barnard, Birmin.am / %enfrew, ,ttaway /

'orman+ a good answer would ha-e also re$ognised that the gift of the remainder will fail as

a $haritable trust (5bene-olent uroses0): orie / Biso- of Duram.

($) 7o far as the third bequest was $on$erned, this was an intermediate trust (by analogy with

an intermediate or hybrid ower), and raised the issue of administrati-e wor&ability. good

answer would ha-e $onsidered e.arry 3s-iew in %e Hays )Tthat an intermediate ower

is -alid, though not an intermediate trust.

Law of Trusts Tutorial (3 Certainties) Page 2 ofPrepared by Edmund Lau


3/8

200 Zone A Question 4

Consider the -alidity and effe$t of the following ro-isions in 8eorgiana0s will:

i. all my good wines, as my wine mer$hant shall in his absolute 2udgment determine, to

9erbert, my husband, the remaining bottles to be sold and the ro$eeds to be used for the

u&ee of my tortoise, 7adie, until the end of her days+

ii. "",""" to be used to ma&e grants within si# months of my death to su$h of my

longstanding friends as my trustees shall in their absolute dis$retion thin& fit, any funds

remaining to fall into residue+

iii. the residue of my estate on trust for my husband 9erbert for life, remainder to su$h

members of the 5ointed Class0 and in su$h amounts as my trustees shall in their absolute

dis$retion see fit. The 5ointed Class0 shall $onsist of my $hildren, their souses or former

souses or widows or widowers and any issue thereof, and any erson aointed to the

ointed Class by my trustees by written deed within the lifetime of my husband 9erbert,

my trustees to ha-e ower to aoint in their absolute dis$retion anyone in the world to theointed Class e#$et the trustees or the trustees0 ne#t of &in, emloyees or deendants.

/#aminer0s 1eort:

This was a roblem question on $ertainties of sub2e$t matter and ob2e$ts, with a bit of ri-ate

urose trusts thrown in for good measure.

Part (i) raised an issue of $on$etual un$ertainty as regards the wine and the question whether

that $on$etual un$ertainty $ould be resol-ed by ma&ing a third arty arbiter ($f re Tu5

1!6"#, though there in the $onte#t of ob2e$ts rather than sub2e$t matter). The ro-ision for

7adie the tortoise raised the anomalous e#$etions oint, and a eretuity oint as well,though gi-en that eretuities are not on the syllabus, $andidates were not e#e$ted to do

anything other than mention it in outline.

Part (ii) as&ed $andidates to identify what sort of gift was in-ol-ed and the aroriate test

for $ertainty of ob2e$ts. good answer would question whether re Barlows WT 1!6!#was

rightly de$ided ($f Emery7 1!"2# !" $Q% &&1).

Part (iii) raised the question whether the ower to aoint urortedly gi-en to the trustees

$ould ossibly be so wide.

nswers to this question were disaointing, mainly be$ause $andidates on$e again failed

roerly to read the question. 7o, for e#amle, the re Tu5oint ; the question whether the

$on$etual un$ertainty $on$erning the wine $ould be resol-ed by referen$e to a third%arty

wine mer$hant ; was $omletely misunderstood be$ause many $andidates identified the wine

mer$hant as a trustee, whi$h he $learly was not.


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5/8

matters of fa$t as to whether the $on$et alies to any

arti$ular $ase ; e.g. whether a arti$ular wine is good wine or

not.)

uestion ? s 5good wines0 $on$etually un$ertain@ 21 years.

o Peretuity eriod for animals ? years only.

Therefore, 8eorgiana0s trust for the u&ee of 7adie will be

-alid but not 5until the end of her days0 ; only u to years.

Part ii#:

o nstru$tion to trustee to ma&e grants using "",""" to longstanding friends.

1emaining amounts to go to residual estate.

o

alid disosition@ 1esidual legatee (9erbert) would li&ely argue that it isin-alid as Glongstanding friendsH is $on$etually un$ertain.

9owe-er, it may be ossible to argue that it is -alid:

%e ?i**ard 1!# ; old friend; a ower of aointment was

uheld (Plowman B).

%e


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in the language used to describe the ualifications necessary

for inclusion among the objects of the power, the problem is the

same whether one has to consider a power of selection or trust

to divide. (i.e. same degree of $on$etual $ertainty required

for both trusts and owers ; so the abo-e $ases $an be alied

to trusts as well).

o Present fa$ts are also -ery similar to:

%e Barlows Wills Trusts 1!6!#

Testatri# dire$ted trustees to allow any of her friends to buy

aintings from her $olle$tion at below mar&et -alue. Thus, the

$ondition re$edent 5friendshi0 defined a $lass of otential

donees.

3rowne%Ail&inson B held that the e#e$utor was not required to

determine a $lass of donees defined by the term friends, but

rather that it was indi-idual gifts to su$h ersons who $ould

satisfy the $riteria of friendshi.

9e also held that it this had been a 5$lass gift0, it would need tosatisfy the ny%8i-en%Postulant test and would therefore ha-e

failed.

3ut he held in the $ase that it was only a series of indi-idual

gifts ? i.e. a modified -ersion of the 5one%erson test0 o-erruled

in %e ?ul*en5ian 1!"#.

o doted the test in %e Allen 1! ; testator left

roerty to the eldest of his nehews who shall be a

member of the "hurch of -ngland and an adherent to

the doctrine of the church. 9eld to be -alid sin$e there

was no roblem for the $laimant to show that he (i.e.one erson) fell within the $riteria=

o 3oth8ay 1!"0# andEmery 1!"2#$riti$ised this

de$ision in #e llenas wrong, and as it was adoted in

#e &arlow, the latter is also wrong. The 5one%erson

test0 has already been o-erruled in#e /ulbenkian and

#e llen should ne-er ha-e then been alied in #e

&arlowat all.

o *esite the $riti$isms, offat 200!#maintained that

1e 3arlow remains the law desite being one rather

precarious surviving anomaly of the re*alignment of

certainty of objects test. >n that note, it is submittedthat 8eorgiana0s grants to her Glongstanding friendsH is

-alid.

Part iii#:

o Certainty of sub2e$t%matter@

1esidual estate to 9erbert ? $ertain. *istinguish from Gwhate-er%is%

leftH trusts (Palmer / )immonds 1"&4#). mortant to ta&e note that

9erbert does not ha-e absolute dis$retion o-er the residual estate. t is

u to the dis$retion of the trustees to benefit him with the residual

estate ; i.e. it is u to the trustees to ensure that there will be somethingleft after 9erbert0s death.

lso, the estate is only a Glife interestH ; %e $ast 1!&"#+ %e

Tomsuns Estate 1"6!#.

Law of Trusts Tutorial (3 Certainties) Page ! ofPrepared by Edmund Lau


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8/8

200" Zone B Question 2

JJJ ssignment uestion for 7tudent JJJ

Fred has re$ently died. n his will, he made the following bequests:

i) 5"",""" to my e#e$utors on trust in equal shares for my nie$es and nehews.0 Fred was

sur-i-ed by at least three nie$es and nehews, but erhas more: one of his sisters emigrated

to ustralia many years before, and has not been heard of sin$e+

ii) 5"",""" to my e#e$utors on trust for those to whom they $onsider owe a moral

obligation in su$h shares as they in their absolute dis$retion shall determine0+

iii) 5!",""" to my e#e$utors on trust to be distributed in their absolute dis$retion amongst

my friends. n $ase of doubt, my wife will tell them whether a arti$ular indi-idual was a

friend of mine0+

i-) 54y e#e$utors to ay an equal share of the residue of my estate to ea$h of my $hildren,

ro-ided he or she is an adherent to the do$trine of the Chur$h of /ngland.0 Fred wassur-i-ed by two $hildren, *a-id and i$toria. *a-id is a bisho of the Chur$h of /ngland+

i$toria is a 3uddhist.

*is$uss.

/#aminer0s 1eort:

Part (i) of this four%art roblem required $andidates to identify this as a fi#ed trust and to

then arti$ulate and aly the rele-ant test for $ertainty of ob2e$ts, remembering that the

rele-ant standard of roof in $i-il $ases is roof on a balan$e of robabilities.

Part (ii) should ha-e been identified as a dis$retionary trust, the question then being whether

it failed for un$ertainty of ob2e$ts. Candidates should ha-e as&ed whether the fa$t that it was

left to the trustees to determine to whom a moral obligation was owed sa-ed the bequest from

failure for $on$etual un$ertainty ($omare with re $ee5).

Part (iii) should again ha-e been identified as a dis$retionary trust, the question now being

whether 5friends0 was suffi$iently $on$etually $ertain. 1eferen$e to re Barlowmight ha-e

been made here, though only to note that e-en BrowneWil5inson 3would ha-e held the

bequest to fail had it been a dis$retionary trust. ssuming $on$etual un$ertainty, the question

then was whether it was ossible to sa-e the bequest by referen$e to a third arty.

Finally, art (i-) raised questions as to the ali$ability of the test for gifts sub2e$t to a

$ondition re$edent.

4ost answers followed a standard format of dis$ussing the three $ertainties in great detail.

9owe-er, there is no oint in doing this where some oints are un$ontentious. Candidates

should learn to sot the areas of diffi$ulty and go straight for them. There was, for e#amle,

no oint sending two or three ages dis$ussing issues of $ertainty of intention or $ertainty of

sub2e$t matter, for these ase$ts were unroblemati$. 4oreo-er, it was in$redible that

$andidates still ma&e the fundamental mista&e of saying that a gift of the de$eased0s residuary

estate will fail for un$ertainty of sub2e$t matter.

Law of Trusts Tutorial (3 Certainties) Page # ofPrepared by Edmund Lau

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TUTORIAL - 3 Certainties (September 2012)