Alternatively, in Re Baden (No 2) it was suggested that the onus of proof is on the beneficiary, if he could prove he was an avid fan then he was in, if he failed to show this he was out. This maybe able to overcome the problem and will mean the substantial number of certain beneficiaries will be able to benefit. However, this is unlikely as in most cases it would be hard to show who is and who isn’t an avid fan. Therefore, it can be suggested the trust is void.
Additionally, Lord Wilberforce introduced ‘administrative unworkablilty’ which implies the class of objects is too broad. The potential beneficiaries could be up to millions of people, similarly to the case of West Yorkshire Metropolitan County Council and this would be ‘quite simply unworkable’ as it will be one which the courts will struggle to control. Therefore, even if certainty was found within the term avid fans, administrative unworkability will still render this provision void.
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The intention to create a trust is debateable. Rose leaves memorabilia to 'her friend’; this may imply that Rose had intended Sarah to have a personal power. This is essential, as Sarah will not be compelled to carry out the obligation, or be compelled to consider who to give the memorabilia to. However, it can be argued the word 'shall' would indicate that it was the intention of Rose was to create a discretionary trust. Shall indicates she is obliged to consider which of the ‘nice colleagues’ deserves the TV memorabilia. Therefore, although debatable a discretionary trust has been created.
When creating a trust the language used must be clear, it must be established therefore if ‘TV memorabilia’ is sufficiently clear. Re London Wine Co (Shippers)ltd emphasised how important it is that the memorabilia can be ‘physically separated’ or divided from other objects. If they can be physically separated, this will indicate certainty of the subject matter. This maybe established if the memorabilia is stored separately or is easily identified as being apart. However, if there will be a problem if they are part of other TV goods or other memorabilia, how can you identify what goods are TV memorabilia and which isn’t? It is acknowledged that the courts will take an objective approach to try to find the intention of the settler, in Re Golays Wills Trusts flexibility was given to allow the trustee to use discretion to choose, in this instance the trustees could choose what belongings are classed as TV memorabilia. Furthermore, an expert could distinguish and physically separate the objects. Although debateable and more information is needed, it will be assumed that the courts will find certainty in the subject matter.
Similarly to ‘avid science fiction fans,’ the term ‘nice colleagues’ is conceptually uncertain. It will be almost impossible to establish which colleague was nice. It can be suggested that section (B) will fail as a trust. However, the intention of Rose was for her colleagues to be able to choose between the memorabilia. In Re Barlow Will Trust the courts were able to avoid being bound by rigid rules construing paintings as a series of gifts. This would be conditional to if a person could show they were a nice colleague, however this ‘gift’ would be valid.
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It can be inferred that a mere power was intended to be created, evidentially because there is money left over which clearly shows an intention to create a power and not a trust. 'They are under no duty to distribute, only a duty to consider.' A fiduciary power compels the act responsibly and selflessly.
The intention of subject matter is £250,000 and is therefore also clear and certain.
Certainty of the objects is unclear. It is clear it is intended for junior doctors, but who within this category may lead to problems. In Re Gulbenkian Settlement the ‘is or is not test’ was approved from the case of Re Gestetners Settlement. Therefore, it is vital that each individual can be known they fall within the class; otherwise the trust will be void. A junior doctor normally can be proved. A certificate of academic study could be obtained, otherwise evidence from other workers etc. It seems this would be certain. Furthermore, if there were difficulties with one individual it could be suggested that the onus is on the beneficiary to prove he falls within the class, if he can’t he would fail to receive the money, still the trust wouldn’t fail.
Any money left over after the 5 years will be an absolute gift to the Boe Foundation.
- Unlike the other provisions there seems to be no mention of a trustee which suggests the collectibles are gift to Marta and Donna. There is no triangular relationship which infers no trust was intended by Rose. As the courts will try and impose the intention of the settler, it can be suggested a gift has been created and is not subject to the rule of a trust.
Alternatively, if fixed trust has been created there will be a problem with the certainty of the subject matter. What is ‘collectible’ is complex to determine. As stated in (B) it is essential the courts can physically separate the collectibles from the not collectibles. However, Re Tucks suggests that an expert can be used to distinguish, if this is possible the provision could be valid. Furthermore, what is also uncertain is who gets what collectibles, does Martha get first choice? Or does Donna? There is further uncertainty of subject matter. If we can’t distinguish who is entitled to what collectible then the provision is invalid.
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The intention of Rose needs to be considered. In terms of the London house, it is important to construe this provision as a whole to see what Rose intended. It can be inferred that a gift was intended by rose with a moral obligation but no legal obligation of a trust. The words fall short of an imperative duty on Astrid, therefore there is no legal obligation. In terms of Jack, there has been a valid gift created to Astrid.
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Any of the provisions that have been found as invalid will go back to the estate. Therefore, Jack will be entitled to these as an out right gift.
Bibliography
Huson. A (2007) (5th Ed.) Equity and trusts. London. Cavendesh Pubishing
Parker and Mellows (2008) (9th Ed.) The modern law of trusts. London. Sweet & Maxwell.
Ramjohn, M. (2008) Text, Cases and Materials on Equity and Trusts. London. Routledge Cavendesh
Watt, G (2004) Trusts. Oxford. Oxford University Press
Knight v Knight (1840) 3 Beav 171
Watt, G (2004) Trusts. Oxford. Oxford University Press. p.64
Morice v Bishop of Durham (1804) 9 Ves 399
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