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 $ase of
any dis)ute as to who is hard%wor&ing, the *ean of the TCL Law
Fa$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$hase
my law library for ,"",""".
Fred has now died. .d-ise the e#e$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 $niversity o# %ondon examiners strongly
discourage! It is #or this reason that I will &eep sample answer handouts
such as this one to a minimum! It would 'e more pro#ita'le #or students to
attempt the tutorial uestions on their own and then consult with their
lecturers(tutors #or #urther guidance a#ter they do so!
"he #ollowing sample answer is only provided to students as a guide in how
they should structure their answers! In other words) it is more important to
ta&e note o# how the sentences) paragraphs and arguments are structured
'elow! *tudents should pay care#ul attention to the seuence o# ideas and
how arguments are su'stantiated with authorities #rom cases and academic
writing!
I do not ma&e any pretensions to o##ering you a +per#ect, answer to the
examination uestion a'ove -indeed, in a discussive/reflective question, it is
doubtful if there really is a perfect answer at all!.! *tudents are there#ore
encouraged to use the sample only as a guide! It is my #irm 'elie# that
conscientious students should 'e a'le to produce 'etter scripts than the one
o##ered 'elow!
%aw o# "rusts / "utorial -0 1ertainties. *ample Answer
2repared 'y 3dmund %au 2age 1 o#
/am)le .nswer:
Fred0s e#e$utors would li&e to &now whether the bequests in the will are -alid in order
to )ro)erly $arry out what Fred intended in the will. /hould any of the bequests be in-alid,
the )ro)erty in question will then go to Fred0s residuary estate. Following the guidelines laid
down by Lord Langsdale in 4night v 4night -1540., the $ourts will not )erfe$t im)erfe$t
gifts and it is im)erati-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 a))ear 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 TCL is a suffi$iently $ertain des$ri)tion 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 6c2hail v 7oulton -1890. is the any-given-postulant test. (n effe$t, this
basi$ally re-erses the burden for e-idential $ertainty u)on the )ostulants themsel-es, rather
than to lay it u)on the trustees (although it is im)ortant to note that Lords /a$hs, /tam) and
2egaw in :e ;aden -No! 2. -1892. )ro)osed different tests as to how the $ertainty is to be
determined). That being the $ase, Lord 3ilberfor$e (in 2$Phail) em)hasised the im)ortan$e
of $on$e)tual $ertainty, des)ite the re-ersal of e-idential burden. (n other words, it is still
ne$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 sort
that 1!"! 3mery defined as a hopelessly wide concept su$h as a good citizen.
The only assistan$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 dis)ute 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 $on$e)tual un$ertainty.
4owe-er, it should be noted that in 6e Tu$&0s, none of the other 1udges a))ro-ed of this
a))roa$h. Furthermore, the $ase in-ol-ed a gift rather than a trust and it was also held that
there was no $on$e)tual un$ertainty in that $ase.
2ro#essor <ayton, in his $riti$ism of Lord *enning0s a))roa$h, strongly disa))ro-ed
of su$h $lauses allowing third )arties to be the 1udges to determine the meaning of the words
of the testator. (t is submitted that 4ayton0s -iew is most li&ely $orre$t as the effe$t would be
to turn the trust into the *ean0s trust rather than Fred0s $ase. Following the a))roa$h of
7en&ins L7 in :e 1oxon -1845., su$h o)inion $lauses should not $ure $on$e)tual un$ertainty
but may only go so far as to determine matters of fa$t 8 i.e. that Fred0s $on$e)tion of 5hard
wor&ing students0 is in agreement to that of the *ean0s. (n other words, that would go only as
far as to )ro-ide e-idential $ertainty on that matter. (t is unli&ely that the $ourts will go so far
as to allow the *ean0s $on$e)tion to su))lant that of Fred0s. 3ith this it is submitted that the
first bequest will li&ely fail for $on$e)tual un$ertainty in the ob1e$ts of the trust.
%aw o# "rusts / "utorial -0 1ertainties. *ample Answer
2repared 'y 3dmund %au 2age 2 o#
'! +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$tly was intended by Fred. 9n the a-ailable wording in his will,
it a))ears that Fred intended that his trustees use the funds to )ro-ide snoo&er tables for the
student union. This a))ears to be a 5)ri-ate )ur)ose trust0 8 i.e. that the trustees use the trust
)ro)erty in order to a$hie-e a s)e$ified )ur)ose, namely, the )ro-ision of snoo&er tables for
the student union.
The rule, following :e 3ndacott -18=0., is that a trust for a non%$haritable )ri-ate
)ur)ose will not be u)held by the $ourts. (n that $ase, Lord :-ershed held that in a )ri-ate
)ur)ose trust where there are no as$ertainable benefi$iaries, there will be no one to enfor$e
the trust. Therefore su$h trusts (sa-e for a -ery narrow $ategory of e#$e)tions 8 i.e.
5anomalous )ri-ate )ur)ose trusts) would fail as they -iolate the 5benefi$iary )rin$i)le0 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 u)held. (n that $ase, the )ersons
that the settlor intended to benefit were the employees of the company. 4owe-er, ;off 7 was
determined to u)hold the 5benefi$iary )rin$i)le0 and therefore the trust failed. 9n the wording
in Fred0s se$ond bequest, it does a))ear that the student union of TCL is $loser to the
situation in 6e *enley rather than the im)ossibly wide obligations in 6e .stor (where the
)ur)ose was a -ague one 8 5)romoting freedom of the )ress, et$.0).
That being said, it is argued that ;off 7 is )robably wrong in his a))roa$h. 4e -ery
$on-eniently equated people for whom the trust was intended to benefit with the
beneficiaries under a trust. This, it is submitted, is a fundamental error as a benefi$iary
under a trust holds a benefi$ial interest in the )ro)erty of the trust, but not so the 5)eo)le that
the trust was intended to benefit0. (t is )re$isely be$ause of su$h a benefi$ial interest that a
benefi$iary is allowed to enfor$e a trust at all.
(n $ontrast to the a))roa$h of ;off 7, it is argued that an 5enfor$er )rin$i)le0 would
ma&e mu$h more sense. (n other words, a )ri-ate )ur)ose trust C9<L* be -alid should the
settlor also a))oint someone to as the 5enfor$er0 of the trust to a))ly to the $ourts to $om)el
the trustees to $arry out the obligations of the trust. 3hile su$h an a))roa$h has been
e#)ressly a))ro-ed of in 5offshore0 1urisdi$tions (and also strongly su))orted by <ayton), it
should be noted that the a))roa$h has not been ado)ted by the :nglish $ourts at )resent. (n
other words, the rule is still that in 6e :nda$ott (des)ite the $riti$isms of that de$ision) and
Fred0s se$ond bequest would li&ely fail as well. 2oreo-er, there is nothing in the bequest that
suggest Fred a))ointing an 5enfor$er0 at all unless it $an be argued that the student union of
TCL are im)lied enfor$ers (whi$h would, in effe$t, sim)ly be an a))li$ation of the a))roa$h
of ;off 7 abo-e). (t is unli&ely that the $ourts would u)hold su$h an a))roa$h.
c! +outstanding legal academic,:
Finally, the third bequest a))ears, on first glan$e, to fa$e the same )roblems with
un$ertainty of ob1e$ts (outstanding legal academic) as that in the first bequest abo-e. That
being the $ase, it should be noted that Fred had not intended to $reate a trust here. 9n the
wording in the will, it a))ears to be a gift sub1e$ted to a $ondition )re$edent 8 i.e. that a
)ur$haser of Fred0s law library who satisfied the $ondition of being an outstanding legal
academic would be able to )ur$hase it at a s)e$ial )ri$e of ,"",""". The fa$ts are -ery
%aw o# "rusts / "utorial -0 1ertainties. *ample Answer
2repared 'y 3dmund %au 2age 0 o#
similar to the situation in :e ;arlow,s >" -1898., where =rowne%3il&inson 7 u)held su$h a
bequest allowing the 5friends of 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, 5friends would
fail for $on$e)tual un$ertainty of ob1e$ts. 4owe-er, it was u)held 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 $ontinue to ado)t the
a))roa$h of =rowne%3il&inson 7 abo-e. The de$ision has been sub1e$ted to se-ere a$ademi$
$riti$isms, $hiefly by 1!"! 3mery, who argued that the testatri#0s dire$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 $on$e)tual $ertainty. /hould that be the $ase,
5friends in 6e =arlow and outstanding legal academic in Fred0s will would li&ely be held
to be $on$e)tually un$ertain.
(n other words, whether or not Fred0s third bequest is -alid would de)end 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 $on$e)tual un$ertainty.
%aw o# "rusts / "utorial -0 1ertainties. *ample Answer
2repared 'y 3dmund %au 2age 4 o#