Sir Adolph Tuck, a baronet who had run the art publisher Raphael Tuck & Sons, created a trust for future baronets who were married to a wife 'of Jewish blood' and who 'continues to worship according to the Jewish faith'. If in doubt, 'the decision of the Chief Rabbi in London of either the Portuguese or Anglo German Community… shall be conclusive'. It was contended that the concepts of being of Jewish faith and of Jewish blood were too uncertain for the trust to be valid.
Judgment
Lord Denning MR held the trust was valid, and the Chief Rabbi could resolve any uncertainty. The trust, however, would have been valid even if the Chief Rabbi had not been identified.
Sir Adolph himself died on 3 July 1926, leaving two sons and three daughters. He was succeeded by his eldest son, Sir William Tuck. He married an approved wife and had a son and daughter. Sir William died on 12 May 1954, and was succeeded by his son, Sir Bruce Tuck. Sir Bruce married first an approved wife and had two sons. But in 1964 there was a divorce. In 1968 he married a lady who was not an approved wife.
Now a question arises whether the settlement is valid or not. If it is valid, the fund will go to Sir Bruce Tuck and his two sons. If it is invalid, it will go to Sir Adolph's estate.
Mr. Dillon, QC submitted that the definition of 'approved wife' was so uncertain as to be void for uncertainty: that this uncertainty could not be cured by referring the matter to the Chief Rabbi: and that in consequence all the provisions in the settlement referring to an 'approved wife' must be disregarded.
If this argument is correct, it means that the intentions of the settlor, Sir Adolph, have been completely defeated by the ingenuity of the lawyers: first, in discovering the uncertainty: and, secondly, in refusing to allow it to be cured by reference to the Chief Rabbi. I will deal with these two points in order.
[...]
In making his submissions, Mr. Dillon, Q. C. used two phrases which have begun to fascinate Chancery lawyers. They are "conceptual uncertainty" and "evidential uncertainty". After a little probing, I began to understand a little about them. "Conceptual uncertainty" arises where a testator or settlor makes a bequest or gift upon a condition in which he has not expressed himself clearly enough. He has used words which are too vague and indistinct for a court to apply. They are not sufficiently precise. So the court discards the condition as meaningless. It makes it of no effect, at any rate when it is a condition subsequent.
"Evidential uncertainty" arises where the testator or settlor, in making the condition, has expressed himself clearly enough. The words are sufficiently precise. But the court has difficulty in applying them in any given situation because of the uncertainty of the facts. It has to resort to extrinsic evidence to discover the facts, for instance to ascertain those whom the testator or settlor intended to benefit and those whom he did not. Evidential uncertainty never renders the condition meaningless. The Court never discards it on that account. It applies the condition as best it can on the evidence available.
This dichotomy between "conceptual" and "evidential" uncertainty was adumbrated by Jenkins J. in Re Coxen (1948) Chancery at pages 761/2. It is implicit in Lord Upjohn's speech in Re Gulbenkian [1970] A.C. 508 at page 525 and accepted by Lord Wilberforce in Re Baden's Deed Trusts [1971] A.C. 424 page 457. I must confess that I find the dichotomy most unfortunate. It has led the courts to discordant decisions. I will give some relevant instances. On the one hand, a condition that a person shall "not be of Jewish parentage" has been held by the House of Lords to be void for conceptual uncertainty, at any rate in a condition subsequent, see Clayton v Ramsden [1943] A.C. 320: and a condition that a person shall be "of the Jewish race" was held by Mr. Justice Dankwerts to be void for conceptual uncertainty, even in a condition precedent, see Re Tarnpolsk [1958] 1 WLR 1157 . The reason in each case being that the testator had given no information or clue as to what percentage or proportion of Jewish blood would satisfy the requirement. Is it to be 100 per cent, or will 75 per cent or 50 per cent be sufficient? The words do not enable any definite answer to be given.
[...]
I deplore both these dichotomies, for a simple reason and a good reason. They serve in every case to defeat the intention of the testator or settlor. The courts say: "We are not going to give effect to his intentions - because he has not expressed himself with sufficient distinctness or clearness". That assertion gives rise to argument without end as to whether his words were sufficiently clear and distinct: and whether the condition in which they occur was a condition precedent or a condition subsequent.
The second matter is the effect of the reference to a decision of the Chief Rabbi mentioned to solve problems that may arise: it was argued by the Respondents that this solved any question of uncertainty: for the Appellants it was argued that if the concept was uncertain this could not be a solution: if it was too uncertain for the court it was too uncertain for the Rabbis, who could not make a trust for the Settlor, or could not oust the jurisdiction of the court to decide. I do not propose to rule upon this. No problem may arise in the spheres allotted to the Rabbis: None has arisen yet. The learned Judge indicated that he would have found the condition too uncertain but for the reference to the Rabbis. I do not so find it.
Eveleigh LJ said the trust was valid, but only because the Chief Rabbi’s opinion of who was Jewish was part of the definition of the class of beneficiaries. He felt he would not have been able to resolve an uncertain class.
A will or testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.
Wills have a lengthy history.
Joint wills and mutual wills are closely related terms used in the law of wills to describe two types of testamentary writing that may be executed by a married couple to ensure that their property is disposed of identically. Neither should be confused with mirror wills which means two separate, identical wills, which may or may not also be mutual wills.
A purpose trust is a type of trust which has no beneficiaries, but instead exists for advancing some non-charitable purpose of some kind. In most jurisdictions, such trusts are not enforceable outside of certain limited and anomalous exceptions, but some countries have enacted legislation specifically to promote the use of non-charitable purpose trusts. Trusts for charitable purposes are also technically purpose trusts, but they are usually referred to simply as charitable trusts. People referring to purpose trusts are usually taken to be referring to non-charitable purpose trusts.
In law a settlor is a person who settles property on trust law for the benefit of beneficiaries. In some legal systems, a settlor is also referred to as a trustor, or occasionally, a grantor or donor. Where the trust is a testamentary trust, the settlor is usually referred to as the testator. The settlor may also be the trustee of the trust or a third party may be the trustee. In the common law of England and Wales, it has been held, controversially, that where a trustee declares an intention to transfer trust property to a trust of which he is one of several trustees, that is a valid settlement notwithstanding the property is not vested in the other trustees.
Barclays Bank Ltd v Quistclose Investments Ltd[1968] UKHL 4 is a leading property, unjust enrichment and trusts case, which invented a new species of proprietary interest in English law. A "Quistclose trust" arises when an asset is given to somebody for a specific purpose and if, for whatever reason, the purpose for the transfer fails, the transferor may take back the asset.
Saunders v Vautier[1841] EWHC J82, (1841) 4 Beav 115 is a leading English trusts law case. It laid down the rule of equity which provides that, if all of the beneficiaries in the trust are of adult age and under no disability, the beneficiaries may require the trustee to transfer the legal estate to them and thereby terminate the trust. The rule has been repeatedly affirmed in common law jurisdictions, and is commonly referred to as "the rule in Saunders v Vautier" for shorthand.
A discretionary trust, in the trust law of England, Australia, Canada and other common law jurisdictions, is a trust where the beneficiaries and/or their entitlements to the trust fund are not fixed, but are determined by the criteria set out in the trust instrument by the settlor. It is sometimes referred to as a family trust in Australia or New Zealand. Where the discretionary trust is a testamentary trust, it is common for the settlor to leave a letter of wishes for the trustees to guide them as to the settlor's wishes in the exercise of their discretion. Letters of wishes are not legally binding documents.
English trust law concerns the protection of assets, usually when they are held by one party for another's benefit. Trusts were a creation of the English law of property and obligations, and share a subsequent history with countries across the Commonwealth and the United States. Trusts developed when claimants in property disputes were dissatisfied with the common law courts and petitioned the King for a just and equitable result. On the King's behalf, the Lord Chancellor developed a parallel justice system in the Court of Chancery, commonly referred as equity. Historically, trusts have mostly been used where people have left money in a will, or created family settlements, charities, or some types of business venture. After the Judicature Act 1873, England's courts of equity and common law were merged, and equitable principles took precedence. Today, trusts play an important role in financial investment, especially in unit trusts and in pension trusts. Although people are generally free to set the terms of trusts in any way they like, there is a growing body of legislation to protect beneficiaries or regulate the trust relationship, including the Trustee Act 1925, Trustee Investments Act 1961, Recognition of Trusts Act 1987, Financial Services and Markets Act 2000, Trustee Act 2000, Pensions Act 1995, Pensions Act 2004 and Charities Act 2011.
Knight v Knight (1840) 49 ER 58 is an English trusts law case, embodying a simple statement of the "three certainties" principle. This has the effect of determining whether assets can be disposed of in wills, or whether the wording of the will is too vague to allow beneficiaries to collect what appears on the face of the will to be theirs. The case has been followed in most common law jurisdictions.
The three certainties refer to a rule within English trusts law on the creation of express trusts that, to be valid, the trust instrument must show certainty of intention, subject matter and object. "Certainty of intention" means that it must be clear that the donor or testator wishes to create a trust; this is not dependent on any particular language used, and a trust can be created without the word "trust" being used, or even the donor knowing he is creating a trust. Since the 1950s, the courts have been more willing to conclude that there was intention to create a trust, rather than hold that the trust is void. "Certainty of subject matter" means that it must be clear what property is part of the trust. Historically the property must have been segregated from non-trust property; more recently, the courts have drawn a line between tangible and intangible assets, holding that with intangible assets there is not always a need for segregation. "Certainty of objects" means that it must be clear who the beneficiaries, or objects, are. The test for determining this differs depending on the type of trust; it can be that all beneficiaries must be individually identified, or that the trustees must be able to say with certainty, if a claimant comes before them, whether he is or is not a beneficiary.
The creation of express trusts in English law must involve four elements for the trust to be valid: capacity, certainty, constitution and formality. Capacity refers to the settlor's ability to create a trust in the first place; generally speaking, anyone capable of holding property can create a trust. There are exceptions for statutory bodies and corporations, and minors who usually cannot hold property can, in some circumstances, create trusts. Certainty refers to the three certainties required for a trust to be valid. The trust instrument must show certainty of intention to create a trust, certainty of what the subject matter of the trust is, and certainty of who the beneficiaries are. Where there is uncertainty for whatever reason, the trust will fail, although the courts have developed ways around this. Constitution means that for the trust to be valid, the property must have been transferred from the settlor to the trustees.
In English law, secret trusts are a class of trust defined as an arrangement between a testator and a trustee, made to come into force after death, that aims to benefit a person without having been written in a formal will. The property is given to the trustee in the will, and he would then be expected to pass it on to the real beneficiary. For these to be valid, the person seeking to enforce the trust must prove that the testator intended to form a trust, that this intention was communicated to the trustee, and that the trustee accepted his office. There are two types of secret trust — fully secret and half-secret. A fully secret trust is one with no mention in the will whatsoever. In the case of a half-secret trust, the face of the will names the trustee as trustee, but does not give the trust's terms, including the beneficiary. The most important difference lies in communication of the trust: the terms of a half-secret trust must be communicated to the trustee before the execution of the will, whereas in the case of a fully secret trust the terms may be communicated after the execution of the will, as long as this is before the testator's death.
Dillwyn v Llewelyn [1862] is an 'English' land, probate and contract law case which established an example of proprietary estoppel at the testator's wish overturning his last Will and Testament; the case concerned land in Wales demonstrating the united jurisdiction of England and Wales.
Re Baden’s Deed Trusts [1972] EWCA Civ 10 is an English trusts law case, concerning the circumstances under which a trust will be held to be uncertain. It followed on from McPhail v Doulton, where the House of Lords affirmed that upholding the settlor's intentions was of paramount importance. It dealt with the same facts as McPhail v Doulton, since the Lords had remanded the case to the Court of Appeal to be decided using the legal principles set out in McPhail.
Re Barlow's Will Trusts [1979] 1 WLR 278 is an English trusts law case, concerning certainty of the words "family" and "friends" in a will.
Re Gulbenkian’s Settlements Trusts [1968] is an English trusts law case, concerning the certainty of trusts. It held that while the 'is or is not' test was suitable for mere powers, the complete list test remained the appropriate test for discretionary trusts. It was only a year later in McPhail v Doulton that the 'is or is not' test was considered appropriate for discretionary trusts by a different panel of their lordships.
Morice v Bishop of Durham [1805] EWHC Ch J80 is an English trusts law case, concerning the policy of the beneficiary principle.
Testate succession exists under the law of succession in South Africa.
Minshull v Minshull (1737) 26 ER 260 is an English trusts law case, concerning the principle of certainty for a will, known then as a "devise".
References
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