An Examination of Intention Subject

Introduction

The current case involves determining whether the Deed of Settlement and the three clauses pass the three certainties tests of intention, subject matter and objects to make a valid disposition.

The Deed of Settlement

The first issue is whether the intention of Anna is satisfied by the language used in the Deed of Settlement. Lord Eldon in Wright v Atkyns states that the ‘‘the words must be imperative’. Thus, the word ‘trust’ used in the Deed signifies that the certainty of intention to create the trust exists. Seeking law dissertation help to evaluate such intricate legal nuances can provide invaluable clarity and guidance in navigating through complex cases like this.

The second issue is whether the language in the Deed enables the identification of the subject matter, which is the 200 bottles out of the 1000 vintage wine bottles. Oliver J in Re London Wine Co (Shippers) Ltd ruled that a trust to hold 2 sheep without identifying them is a mere declaration and is not a valid trust. Likewise, the language in the current Deed does not precisely indicate the details of the 200 wine bottles. Since the subject matter comprises tangible items and the deed was made during the lifetime of Anna, the non-segregation of the 200 wine bottles may make the trust void.

The third issue is whether the Deed is certain of the objects of the trust. Anna had named Del as the beneficiary of the trust. Applying the complete list or class ascertainability test used on the IRC v Broadway Cottages Trust, there is no doubt about who the beneficiary is in the Deed.

Since the Deed is not certain as to the subject matter, which is which 200 bottles are to be given to Del, the trust is void. It will be a resulting trust. It will be subject to terms of the discretionary trust (Clause c) created in the Will and will be distributed accordingly.

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1. Wright v Atkyns [1823] Turn & R 143.
2. Tony Pursall and Matthew Guthrie, Guernsey Trust Law (Bloomsbury Publishing 2020) 63.
3. Re London Wine Co (Shippers) Ltd (1986) PCC 121.
4. Graham Virgo, The Principles of Equity & Trusts (Oxford University Press 2018) 81.
5. IRC v Broadway Cottages [1955] Ch 20.

The first issue is whether the words of Anna are clear or precarious to determine the certainty of her intention. Precatory words do not generally impose a trust. In Re Adams and the Kensington Vestry, the words, ‘in full confidence that she will do what is right as to the disposal thereof between our children’ were held precatory as they were merely a moral and not a legal obligation. Irrespectively, where the words seem precatory, the disposition should be looked at the whole context to determine intention. Thus, in Comiskey v Bowring-Hanbury, the use of words, ‘absolutely in full confidence that she will make use of it…’ imposed a trust where the conduct of the parties and the words used were interpreted through a careful construction. Reasonable meaning should be given to the language of disposition where the intention should be constructed based on the settlor’s words and the relevant facts given the surrounding circumstances.

Regarding Clause (a), the words, ‘definite conviction…’ cannot be held precatory, applying Comiskey, Gulbenkian’s and Osoba. The personal and professional relationship between Anna and Del and the generous payment to Del demonstrate the professional trust that Anna had on Del. The fact that Anna retired early to look after the foster children demonstrates her genuine care for the children. The use of the words ‘definite conviction’ shows a genuine trust of Anna for Del. As such, the disposition cannot be merely a moral obligation, but a legal obligation on the part of Del to dispose off the mentioned shares for the benefit of the fostered children.

The second issue is whether the subject matter is identified with certainty. The fact of the case shows that the subject matter is clearly the shares worth £10 million in True Reed Limited. The disposition is to sell half the shares. The issue of non-segregation, as dealt with Re London Wine, will not apply with this and as held in Hunter v Moss, shares in such a lifetime trust are interchangeable. Thus, the lack of segregation does not apply to this trust made by Will. Hence, Del acquires the legal title to the mentioned share that enables him to allocate the items to the children.

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6. John Duddington, Law Express: Equity and Trusts (Pearson Education Limited 2018).
7. Re Adams and the Kensington Vestry [1884] Ch D 394.
8. Comiskey v Bowring-Hanbury [1905] AC 84.
9. Ibid.
10. Per Lord Upjohn in Re Gulbenkian’s Settlements [1970] AC 508
11. Per Goff LJ in Re Osoba [1979] 1 WLR 247.
12. Rafferty v Philp [2011] EWHC 709.
13. Hunter v Moss [1994] 1 WLR 452.

The third issue is whether Will is certain of the objects of the trust. The disposition is a fixed trust where the beneficiaries are clearly defined. Applying the complete list or class ascertainability test used on the IRC v Broadway Cottages Trust, there is no doubt about who the beneficiary is in the Deed. In the current case, there are only 50 fostered children that Anna took care. It is also clear that Del has to sell the mentioned shares and divide the proceeds equally among the 50 children. This shows certainty of the objects.

Since clause (a) meets all the three certainties tests, it creates a valid trust and Del must act accordingly.

The first issue is whether Anna’s intention is clear as to creating the trust regarding the oboes. Reiterating Lord Eldon in Wright v Atkyns, the words in the Will are imperative and the use of the word ‘trust’ signifies that the certainty of intention to create the trust exists.

The disposition is a fixed trust where the beneficiaries are clearly defined as Bella, Clara and Vida. Applying the complete list or class ascertainability test used on the IRC v Broadway Cottages Trust, there is no doubt about who the beneficiary is in the Will.

The second issue is whether the words are certain of the subject matter, i.e. which oboes. Anna has used ‘highest valued oboes’. In order to interpret what is ‘highest valued,’ it may be necessary to rely on expert evidence to establish the ‘highest valued oboes’. The reason is that these words may mean ‘valued’ in a monetary sense or precious or valued in other sense. According to Section 21 of the Administration of Justice Act 1982, the court has to interpret the language based on the evidence where the language is meaningless or ambiguous or evidence shows that the language is ambiguous considering the surrounding circumstances. In this current case, there are only 20 very valuable oboes. The subject matter is only six out of the 20 oboes. Expert evidence could identify the concerned six aboes. As such, the subject matter certainty is met.

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14. Alastair Hudson, Equity and Trusts (Taylor & Francis2009).
15. IRC v Broadway Cottages [1955] Ch 20.
16. Wright v Atkyns [1823] Turn & R 143.
17. Tony Pursall and Matthew Guthrie, Guernsey Trust Law (Bloomsbury Publishing 2020) 63.
18. Alastair Hudson, Equity and Trusts (Taylor & Francis2009).
19. IRC v Broadway Cottages [1955] Ch 20.

The third issue is whether the objects are curtained and identified. The language in the disposition clearly named Bella, Clara and Vida as the beneficiaries. Since the trust is a fixed trust, the conceptual certainty and evidential certainty tests will apply.

The conceptual certainty test will determine whether or not the class of beneficiaries can be clearly defined. The ruling in Mc Phail v Doulton states that definition of the class of beneficiaries must be capable of only one objective meaning. Since Anna has named her nieces, her disposition passes this test.

If the mechanism for distribution of the trust property cannot take effect, the trust will fail. In Boyce v Boyce, a disposition would fail if the done does not/ cannot make a choice. In this current case, Vida suffered a heart attack the day following Anna’s death and died a week later. This might mean that Vida did not choose her two oboes. However, the fact also shows that Vida jotted down ‘something important’ on the copy of the Will. Thus, the court will need to review this evidence to determine whether the copy highlights her choices. Until then, the trust will be a resulting trust and the oboes will fall into the residue of the Ann’s estate and pass under the later clause(s) of her Will.

In addition to the conceptual certainty test, it is necessary to find evidential certainty as to whether Bella, Clara and Vida are the nieces of Anna who are mentioned as beneficiaries in the disposition. This evidential certainty will arise from the practical proof that they are the beneficiaries Anna described in her Will. The witness of her sister will be the proof to that effect.

Clause (b) disposition is a resulting trust as the fact shows that Vida did not choose her two oboes, and the final determination is subject to the review of her note in the copy of the Will. As such, the oboes will fall into the residue of the estate and will be subject to Clause (c).

The first issue is determining the intention and the type of trust that is created. The current disposition concerns power. Any presence of a gift over in default of appointment it will be a power as such a gift over is not consistent with the imperative nature of a trust. Thus, if

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20. Judith Bray, A Student's Guide to Equity and Trusts (Cambridge University Press 2020) 58.
21. McPhail v Doulton [1970] UKHL 1.
22. Boyce v Boyce (1849) 6 Sim 476.
23. Chris Thorpe, Implied Trusts and Beneficial Ownership in Modern UK Tax Law (Spiramus press Ltd 2021).
24. John Duddington, Law Express: Equity and Trusts (Pearson Education Limited 2014).
25. Mettoy Pensions Trustees Ltd v Evans [1990] 1 W.L.R. 1587.
26. Re Mills [1930] 1 Ch. 654; Mohamed Ramjohn, Equity and Trusts (Taylor & Francis Group 2006) 54.

Del chooses he has the discretion of merely considering whether or not to make the distribution of the residual assets of Anna. This means he is not compelled to make any distribution at all.

The second issue is whether there is certainty of the subject matter. The language used is certain as to the remainder of the assets, after the disposition in clause (a) and clause (b). The ruling in Re Knapton, recognises that where there is no stipulated mechanism, such uncertainty of beneficial interest could be resolved by exercising a choice of asset, which in Knapton was drawing of lots. However, considering the Deed of Settlement, since the 200 wine bottles were not segregated, the remainder of the assets cannot be ascertained or quantifiable.

In this case, the question of beneficial interests does not arise. Del has the discretion to determine the beneficiary and the amount of assets they get as he deems fit and thus, it is a discretionary trust. The subject matter is, however, not certain of which beneficiaries should receive the subject matters. Applying Hancock v Watson and Re Doubleness Trust, the trust will be void where it is impossible to ascertain the beneficial interests. Thus, the question of ‘which’ to whom’ does not arise.

The third issue is whether there is certainty of the objects, which is the class of beneficiaries. Applying the conceptual certainty test will determine whether or not the class of beneficiaries can be clearly defined. Reiterating Mc Phail v Doulton, the class of beneficiaries should be described with sufficient precision to know what the words mean.



Applying the complete list or class ascertainability test used on the IRC v Broadway Cottages Trust, there should not be any doubt as to the class of beneficiary. In this case, there is uncertainty as to the physical whereabouts/location of the beneficiaries. Applying the ruling in Re Hay’s ST , it would be administratively unworkable to locate the beneficiaries. This is

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27. Mohamed Ramjohn, Equity and Trusts (Taylor & Francis Group 2006) 54.
28. Hancock v Watson [1902] AC 14; Lassence v Tierney (1849) 1 Mac & Cr 551.
29. Re Knapton [1941] Ch. 428 (Ch.).
30. Alastair Hudson, Equity and Trusts (Taylor & Francis 2009).
31. Hancock v Watson [1902] AC 14.
32. Re Doubleness Trust [2003] W.T.L.R. 367.
33. Judith Bray, A Student's Guide to Equity and Trusts (Cambridge University Press 2020) 58.
34. McPhail v Doulton [1970] UKHL 1.
35. Ibid.
36. IRC v Broadway Cottages [1955] Ch 20.
37. Re Hay’s ST [1982] 1 WLR 202

a very wide definition of the class of beneficiaries that it would not be possible to form a class. There is an evidential uncertainty based on the facts and lack of proof to define the class of beneficiaries.

As the disposition fails the certainties test of subject matter and objects, the intestacy rule under Section 46 of the Administration of Estates Act 1925 will apply.

Conclusion

Clause (a) is the only disposition that meets the three certainties and thus, creates a valid trust. Hence, the remainder of Ann’s property will be subject to the Administration of Estates Act 1925 as mentioned above.

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McPhail v Doulton [1970] 2 All ER 228

Cases

Boyce v Boyce (1849) 6 Sim 476.

Comiskey v Bowring-Hanbury [1905] AC 84

Hancock v Watson [1902] AC 14

Hunter v Moss [1994] 1 WLR 452

Lassence v Tierney (1849) 1 Mac & Cr 551

McPhail v Doulton [1970] UKHL 1

Mettoy Pensions Trustees Ltd v Evans [1990] 1 W.L.R. 1587

IRC v Broadway Cottages [1955] Ch 20.

Rafferty v Philp [2011] EWHC 709

Re Adams and the Kensington Vestry [1884] Ch D 394

Re Doubleness Trust [2003] W.T.L.R. 367

Re Gulbenkian’s Settlements [1970] AC 508

Re Hay’s ST [1982] 1 WLR 202

Re Knapton [1941] Ch. 428 (Ch.).

Re London Wine Co (Shippers) Ltd (1986) PCC 121

Re Mills [1930] 1 Ch. 654

Re Osoba [1979] 1 WLR 247

Wright v Atkyns [1823] Turn & R 143

Books

Bray J, A Student's Guide to Equity and Trusts (Cambridge University Press 2020)

Duddington J, Law Express: Equity and Trusts (Pearson Education Limited 2018)

Hudson A, Equity and Trusts (Taylor & Francis 2009)

Pursall T and Matthew Guthrie, Guernsey Trust Law (Bloomsbury Publishing 2020)

Ramjohn M, Equity and Trusts (Taylor & Francis Group 2006)

Thorpe C, Implied Trusts and Beneficial Ownership in Modern UK Tax Law (Spiramus press Ltd 2021).

Virgo G, The Principles of Equity & Trusts (Oxford University Press 2018)