General trust principles in a will

Henry ‘s will has three temperaments that need to be considered. The first is the ?100,000 to Jane, the 2nd is the Beatles memorabilia to Gwen, and the 3rd is the ?25,000 to the Uxbridge Guild of Solicitors. In all three cases the inquiry is whether a trust has been formed, a gift created, or an invalid temperament made, and the effects that will flux from such a determination.


Before covering with the single cases, there are three points that can be disposed of with small argument. In order for any trust to be constituted by will the appropriate formalities must be complied with. Under the Administration of Justice Act ( 1982 ) subdivision 17 [ 1 ] , the will must be in authorship, signed, and witnessed. In this instance there is no indicant to the contrary and so it can be assumed that the will is valid and the trust formalities complied with. The 2nd issue is whether any trust has been validly constituted. Again, the cogency of the will reply this inquiry in the affirmatory [ 2 ] . As such it can be said that any trust complies with the formality and fundamental law demands.

?100,000 TO JANE

The important inquiry with respects the sum settled on Jane is whether the money was intended as a gift to her or was simply given to her in a capacity as legal guardian for Carys. The cardinal words are: “in the cognition that she will utilize a proper sum to keep beloved aunt Carys” . The inquiry is whether this phrase is sufficiently certain to set up a trust.

The regulations of certainty were established by Lord Langdale MR inKnight V Knight[ 3 ].For a trust to be established there must be certainty of purpose, object, and capable affair. Here there is no uncertainty as to the individuality of the beneficiary if a trust does be. The two inquiries so are whether there is certainty of purpose and capable affair.


The get downing point inRe. Hamilton[ 4 ] where Lindley LJ emphasised that every determination must be reached on its ain virtues and that case in point is of less value than usually considered. It is though by and large accepted that the consequence should depend on the purpose of the colonist when settling the temperament [ 5 ] .

In this instance the rigorous building of the words would look to favor the being of a trust. After all, a load is placed on Jane, if merely a moral load, to give portion of the amount to Carys. It is clear that when doing the temperament, Henry had in head two people and one gift. These are features that define a trust and non a gift.

The state of affairs is complicated by a organic structure of instance jurisprudence refering precative words. The utmost state of affairs was discussed inRe. Diggles[ 6 ] where the moral duty was specifically separated from the legal duty. The instance on point isRe Adams and the Kensington Vestry[ 7 ] which is on all 4s with Henrys instance. Here the phrase used was: “in full assurance that she would make what was right as to the disposal thereof” . The tribunal found that a gift had been created without the loads of a trust. A ulterior instance [ 8 ] did inquiry this ; the differentiation was that the words were in the signifier of a bid, i.e. “at her decease she will invent it….” . WhileComiskeylends some support to a trust, the tribunals have developed a obliging organic structure of jurisprudence against precative words and it is likely that the discretion given to Jane would turn out decisive.

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Were the tribunal to happen an purpose to make a trust, there would still be a hard hurdle to base on balls of the capable affair. While the substantial issues are dealt with by the inquiry of purpose, it is deserving observing an 1882 instance,The Mussoorie Bank v Raynor[ 9 ] . Here the Privy Council held that the words “confident that she would move rightly to our children” , while puting the purpose into uncertainty besides cast uncertainties over the exact individuality of the capable affair. While non traveling any farther Sir Arthur Hobhouse emphasised that it was another component of circumstantial grounds when sing the purpose of the colonist.


With respect to the Beatles aggregation, there exists both certainty of purpose and of capable affair. The usage of the word “trust” does non vouch the being of a trust [ 10 ] but the formation of the clause leaves no uncertainty as to the purpose. Equally, the capable affair is clearly stated to be “my invaluable aggregation of Beatles memorabilia” . The cardinal inquiry in the instances has been designation and in this instance it is likely that the topic is sufficiently alone as to go forth no uncertainness of capable affair.

The concern though is the object of the trust. Gwen has been instructed to administer the temperament “amongst such of my relations as she thinks fit” . The inquiry so is whether the donees are sufficiently certain. In order to find the appropriate trial, it is necessary to determine the type of trust that may be. Because discretion exists, there is no fixed trust. The inquiry is whether it is a discretional trust or a power. On the face of the linguistic communication it could be either, the important difference being whether the legal guardian can be compelled to scatter the whole of the temperament. In this instance there is a compulsory spirit about the linguistic communication and so I believe that it should be approached as a discretional trust. [ 11 ]

The trial for a discretional trust was enunciated inMcPhail V Doulton[ 12 ].Lord Wilberforce read the demand as “the trust will be valid if it can be said with certainty that any given person is or is non a member of the class” [ 13 ] . This begged the inquiry as to what would be satisfied within the boundaries of this trial. The inquiry of ‘relatives’ which is present in this instance was addressed inRe. Baden DT ( No. 2 )[ 14 ].The tribunal held that the term ‘relatives’ was conceptually certain and as such satisfied the admissibility trial. As a substantial affair, the tribunal was in dissension as to how the phrase should be interpreted and as such Gwen would be left unsure as to the extent of her responsibility. However, the tribunals have held that the term is certain. The determination was approvedsub-silentioinRe. Barlow’s Will Trust[ 15 ] when Browne-Wilkinson J held that the term ‘friends’ was, unlike ‘relatives’ , conceptually unsure. As such even if Henry had a big figure of relations the trust would fulfill the three certainties. It is dry that clothed in this certainty, Gwen would still fight to be guided by the tribunals confused law on the definition of ‘relative’ .

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Unlike the old instances, there is no uncertainness about this trust. There can be no uncertainty that there was an purpose to put up a trust, nor that the capable affair is ?25,000, nor that the donees are the Uxbridge Guild of Solicitors. There appears to be a valid trust set up. The important inquiry here is whether it is possible to put up a trust for the Guild, because it is what is known as a ‘purpose trust’ . [ 16 ]

The general regulation is that purpose trusts are unenforceable [ 17 ] . Over clip a figure of exclusions have developed to the regulation. The first class is the so called ‘imperfect obligation’ . [ 18 ]Re. Endacott[ 19 ] confirmed that purpose trusts were allowable to back up memorials, animate beings, and the expression of public multitudes. It is arguable that while none of these apply straight, an effort could be made to pull this instance in by analogy. An obstruction arises from the logic inEndacottwhere the tribunal was openly disdainful of the exclusions and added that the list was thorough.

A line of authorization has developed that do allow aim trusts to be accepted. One of these occurs in the instance of unincorporated administrations. While a figure of theories have developed about the principle [ 20 ] the common denominator is that the gift should be for the benefit of the rank of the society. InRe. Drummond[ 21 ] the tribunal upheld a gift to the Old Bedfordians because the members would profit from it. Likewise inRe. Lipinski’s WT[ 22 ] the tribunal upheld a gift for specific, though non-charitable, intents. The important inquiry in these instances tends to be what rights the single member has to the gift [ 23 ] instead than cogency.

In this instance, the gift would look to fulfill the demands. The group is, presumptively, unincorporated, and it satisfies the certainty demands. The intent is to fund an one-year dinner and so can be said to be for the benefit of the members.

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This assurance must be tempered by obstructions that the tribunals have placed in the way of non-associated administrations.

The first trouble is the period in which the fund must be administered. The gift will non be permitted to run everlastingly and so inMussett V Bingle[ 24 ] the tribunal struck down portion for a gift which merely permitted outgo of the involvement. This though is non a concern in this instance because the capital has been left for the intent. Because it is a finite sum and has been left for an one-year dinner, it is undeniable that the ?25,000 will decrease on an one-year footing and so will non be for sempiternity.

The 2nd hurdle is that tribunals have had a inclination to strike down trusts that they believe have “useless or capricious” [ 25 ] intents. The range of this though is normally limited to petitions of an highly extremist nature, or those which have the consequence of stop deading the money out of circulation [ 26 ] .


In decision it is likely that no trust will be held to be over the ?100,000. Jane will take the sum as a gift free of legal guardian loads. Gwen will have the Beatles aggregation in the capacity of legal guardian to scatter to such relations as she sees fit. It is likely that the Uxbridge Guild of Solicitors will be the donees of the ?25,000 in their capacity as an unincorporated administration and be able to utilize the money to fund their one-year dinner


Todd P‘Cases and Materials on Equity & A ; Trusts’3rd Edition

Published by Blackstone Press

Watt G‘Law of Trusts’3rdEdition

Published by Blackstone Press

Martin JE‘Modern Equity’16ThursdayEdition‘Hanbury’

Published by Sweet & A ; Maxwell

Pearce R/Stevens J‘The Law of Trusts and Equitable Obligations’2neodymiumEdition

Published by Butterworths

Administration of Justice Act ( 1982 ) Section 17

Wills Act 1837Section 9

Comiskey v Bowring-Hanbury ( 1905 ) AC 84 [ HL ]

Kinloch V Secretary of State for India ( 1882 ) 7 App Cas 619

Knight V Knight ( 1840 ) 3 Beav 171

Leahy V AG for NSW ( 1959 ) AC 457

McPhail V Doulton ( 1971 ) AC 424

Mussett V Bingle ( 1876 ) WN 170

Neville Estates v Madden ( 1962 ) Ch 832

Re Adams and the Kensington Vestry ( 1884 ) 27 Ch D 394

Re. Astor’s Trusts ( 1952 ) Ch 534

Re. Badens DT ( No. 2 ) ( 1972 ) 2 All ER 1304

Re. Barlow’s WT ( 1979 ) 1 All ER 296

Re. Diggles ( 1888 ) 29 Ch D 253

Re. Drummond ( 1914 ) 2 Ch 90

Re. Endacott ( 1960 ) Ch 232

Re. Hamilton ( 1895 ) 2 Ch 370

Re. Lipinski’s WT ( 1976 ) Ch 235

Re. Steele’s WT ( 1948 ) Ch 603

The Mussoorie Bank v Raynor ( 1882 ) 7 App Cas 321