Alison Nieves Will Analyses - Essay Example

 The first clause in Alison Nieve’s Will is a standard provision pursuant to Section 20 of the Wills Act 1837 as amended. Section 20 provides for the revocation of an existing will by the execution of another Will.1 By virtue of Section 20 of the Wills Act 1837 and the first clause of the Nieve’s Will, all other wills and testatmentary dispositions are revoked and the Will in which Simon Landsford and Asif Khan are named as co-executors and co-trustees will surpass and replace all previous Wills executed by Nieve. The second clause of the Will provides for the appointment of Simon Landsford and Asif Khan as co-trusstees and co-executors of the Neive’s Will and with those appointments there are responsibilities and obligations which as explained in greater detail below. Sarah’s Gift The gift to Sarah of 50,000 pounds does not impose upon Simon Landsford and Asif Khan the role of trustees. The power to transfer the sum of 50,000 pounds is founded on their respective capacities as executors of Nieve’s Will. It is clear however that Neive does not intend that Sarah take the funds as an absolute gift. Neive’s sole intention was the creation of a purpose trust with Sarah acting as trustee. In order for a trust to be fully constituted and capable of enforcement it must contain the three certainties. The three certainties are certainty of intention, objects and subject matters. The trust property is commonly referred to as the subject, intention refers to the words and conduct that is capable of identifying the donor’s intention to create a trust and the objects refer to the intended beneficiaries.2 The difficulty with this trust is that Samuel, the object of the trust is not a human beneficiary. However, the subject is clear and encompasses the 50,000 pound bequest to Sarah. Certainty of intention is manifested by the following words: “…for the purpose of caring for and maintaining my beloved python Samuel for the rest of his days.” This bequest to Sarah becomes a purpose trust since it is a trust that has no beneficiaries but provides for some specific non-charitable purpose.3 When a non-charitable purpose trust fails to satisfy the three certainties, the court will not usually enforce it with the result that it is void. In IRC v Broadway Cottages Trust [1995] Ch 20, the Court of Appeal held that it was: “…not at liberty to validate this trust by treating it as a power. A valid power is not to be spelled out of an invalid trust.”4 In general such a trust fails in the absence of certainty of subject based on the concept that there are no be beneficiaries to challenge the trustee should he or she fail to comply with the express wishes of the donor of the power. Courts have however been inclined to uphold such trusts in certain circumstances. For instance in Re Thompson [1934] Ch 342 reasoned that difficulties posed by the absence of a human beneficiary can be overcome since the law permitted the next of kin to enforce the terms of the trust.5 The House of Lords recognized and enforced a trust for the saying of masses although no human beneficiaries were named in the case of Bourne v Keane [1919] AC 815.6 In another case, a trust for the establishment and maintenance of a family monument, together with a tablet and a church window was held to be valid for the twenty-one year perpetuity period as a valid charitable gift.7 The court of Appeal’s decision in Re Endacott [1960] Ch 232 appears to truncate any measure of uncertainty with respect to the enforcement or the validity of non-charitable purpose trusts in which there is no ascertainable human beneficiary. Lord Evershed MR said: “…that no principle perhaps has greater sanctity of authority behind it than the general proposition that a trust by English law, not being a charitable trust, in order to be effective, must have ascertained or ascertainable beneficiaries.”8 Accordingly, Simon Landsford and Asif Khan are at liberty to assume that no valid trust has been created by clause 3 of Neive’s Will and as a result they are entitle to treat the gift of 50,000 pounds as an outright gift to Sarah without more. Agneatha’s Gift Agneatha’s gift suffers the same residual difficulties as does Sarah’s gift. Agneatha is a cat and the result is that the 180,000 pounds, the object of the trust does not name a human beneficiary. The executors of Neive’s estate are instructed to pay the funds to Agneatha which is impossible since the cat cannot take possession of property. The words: “I hope that she will live with you Simon” can be construed to identify Neive’s intention that Simon Lansford act as trustee of the funds. Again, since this is a non-charitable purpose trust the failure to name a human beneficiary is fatal to the gift.9 This gift will fail and should fall to the residuary estate which by the will is an outright gift to both Lansford and Khan. Charlie’s Field The bequest of Charlie’s Field together with 20,000 pounds to Sarah is a non-charitable purpose trust. Technically, the beneficiaries of Charlie’s Fields are the various family members of Nieve’s. Charlie’s Field is allotted for the express purpose of providing Neive’s family members with burial plots for their pets and the 20,000 pounds is allotted for the purpose of maintaining Charlie Field as a pet cemetery. Sarah the primary donee of the subject of the trust is the trustee. Lansford and Khan are only charged with the responsibility of setting up the trust. Their duties would include transferring the property to Sarah with full instructions to adminster the property in the manner provided for via the Will. Although the subject which comprises family members is not specific, it is not altogether vague. According to the House of Lords in McPhail v Doulton [1971] AC 424 all that is necessary is for the trustees to be in a position to ascertain who may or may not be a beneficiary under a trust.10 In this case a trust naming employees, ex-employees, relatives of employees and officers, officers and ex-officers were held to be sufficient certainty of objects.11 Based on the decision of the House of Lords in McPhail v Doulton [1971] AC 424 the gift to Sarah is a valid trust and in all likelihood will not fail for lack of certainty of objects. Memorials for Simon and Agneatha As previously discussed the ruling in Re Endacott [1960] Ch 232 does not recognize nor enforce non-charitable purpose trusts in which there are no human beneficiaries.12 It is obvious that the 20,000 pound gift is for a dual purpose, one of which is valid the other which is not. The gift to Simon is valid since he is a human beneficiary, however the gift to Agneathia is not sihce the latter is a cat. Although the gift to the cat is not a valid trust, Lansford and Khan may if they desire erect the monument for the cat. If they choose not to they will not be held accountable since the courts do not recognize such declarations of trusts. If the trustees/executors opt to ignore the bequest in favor of the cat they funds remaining after erecting the memorial for Simon will fall to the residue of the estate and will by virtue of the Will devolve to Lansford and Khan absolutely. The Opal and Sapphire Rings There are obvious difficulties with the bequest of the rings to “my cousin” and “next door neighbor.” These phrases compromise the certainty of objects required to validate a trust. Assuming that Neive has more than one cousin, there are no means by which Lansford and Khan can reduce the list of potential beneficiaries to just one and even if they could there are no viable means by which the trustees can determine exactly which cousin Neive meant to settle his ring on. Similar concens abound with respect to the bequest of the ring to Neive’s next door neighbor. There are a number of possibilities. First and foremost, Neive may in all likelihood have had at least two households directly next door to him with any number of residents residing in each household. Moreover, the neighbours may have changed over the years so that it might be impossible to even draw up a list of possibilities. Although the rules relating to certainty of objects have been relaxed somewhat by the House of Lords in McPhail v Doulton [1971] AC 424 some safeguards remain in place. Lord Wilberforce warned that: “…where the meaning of the words used is clear but the definition of beneficiaries is so hopelessly wide as not to form "anything like a class" so that the trust is administratively unworkable”.13 In all the circumstances the disposition of the rings is administratively unworkable and as such they will form the residue of Neive’s estate with the result that Lansford and Khan will take absolutely. The Gift to the Disabled Residents of Codlingham The gift to the disabled residents of Codingham is compromised by its vagueness with respect to certainty of objects. To begin with the word disabled is far to wide a term to narrow down the list of possibilities. Moreover, identifying the disabled residents of Codingham is also far too broad for application. This was exactly the type of disposition the House of Lords warned against in the case of McPhail v Doulton [1971] AC 424 Lord Wilberforce explained that words identifying the class of beneficiaries as “all the residents of Greater London” would be determined to be administratively unworkable.14 As a result the gift to all disabled residents in Codingham will fail for lack of certainty of objects and the subject matter of 50,000 pounds will fall to the residue of Neive’s estate so that Lansford and Khan will take the funds absolutely. 60,000 Pounds to Sarah The gift to Sarah is a purpose trust and contains the three certainties. It is obvious that Neive intends to create a trust for Sarah and her children to take vacations. According to the Chancery Division, of the three certainties intention is the most significant and important one.15 Once it is established to the satisfaction of the court that the donor had the required intention, the court will most likely validate the trust. There is no difficulty here in the construction of Neive’s intentions to create a trust. Equally there is no ambiguity in Neives’s will as to the certainty of subject matter. Lansford and Khan will merely be required to transfer the 60,000 pounds to Sarah who will be the trustee of the subject. They will also be required to explain to her the expres wishes of the testator for the administration of the trust property. The Gift to the Former House Cleaners and Housekeepers of Prospect House Although it is not possible to create a complete list of the objects of the trust, the ruling in McPhail v Doulton will apply to this bequest and render the trust valid despite the somewhat uncertainty of objects. Prior to McPhail v Doulton, in order for the requisite certainty of objects to be satisfied the clause identifying the objects in the trust instrument was required to be such that it was possible for the trustees to make a complete list of all the designated beneficiaries. This mechanism was commonly referred to as the “complete test”.’16 However, the House of Lords in McPhail v Doulton, made a brave departure from the application of the ‘complete test’. The House introduced what became known as the ‘in or out’ test. Lord Wilberforce said all that the trustees only had to ascertain whether or not it was possible to say “with certainty that any given individual is or is not a member of the class” of beneficiaries.17 Identifying the former housekeepers and cleaners of Prospect House is an adminstratively workable exercise and according to the ruling in McPhail v Doulton the trust is valid and will be valid. The Gifts to Neive’s Truest Friends and Neive’s Hardworking Nephews The gifts of Neive’s truest friends and his hard working nephews are discretionary trusts and applying the rule set forth in McPhail v Doulton above they are administratively workable trusts. This conclusion is fortified by the cases that followed Macphail. As impossible as it might seem, the rules were relaxed even further. For example, in Re Manisty, a trust instrument which granted trustees the power to add beneficiaries to an existing list of beneficiaries was held to be both valid and enforceable. There was only one proviso, and that was that the power to add beneficiaries had to be consistent with the intention of the settlement as provided for by virtue of the trust instrument itself.18 This relaxation of the rules governing certainty of objects by the House of Lords in McPhail v Doulton developed even further in Re Hay’s Settlement Trusts. Megarry VC held that a trust was valid and enforceable even if the donor failed to provide a list beneficiaries or a class of beneficiaries and vested in his trustees the power to choose beneficiaries. All that was necessary was that a beneficiary be ascertained if the trustees failed to distribute part of the trust property or all of it.19 As a result of the relaxation of the rules regulating certainty of objects Lansford and Khan can administer the trusts for Neive’s truest friends and hard working nephews as valid discretionary trusts. Gifts to Charities The gifts to charities are straight forward if they involve incorporations and individuals such as the gift to Neive’s nieces and nephews and the gift to OM4ALL, to set up an ecology society, museum of pagan and Christian history in the Codlingham area and a charity to support the reintroduction of active paganism in the Codlingham area. These charitable trust impose upon the trustee the same duties that are imposed upon them in relation to private trusts. 20 Once these charities have been registered under the Charities Act 1993 Lansford and Khan will be accountable for all trust receipts and expenditures.21 Bibliography Bogg v Raper 1998/99) 1 ITELR 267 Bourne v Keane [1919] AC 815 Charities Act 1993 IRC v Broadway Cottages Trust [1995] Ch 20 McPhail v Doulton [1971] AC 424 Re Endacott [1960] Ch 232 Re Gestetner Settlement [1953] Ch 672 Re Hay’s Settlement Trusts 1981] 3 All ER 786. Re Hooper [1932] 1 Ch 38 Re Manisty [1974] Ch 17 Re Thompson [1934] Ch 342 Tana & Anor v Tana & Anor [2001] Ch 413 (CA) Watt, Gary. (2006) Trusts and Equity. Oxford University Press. Wills Act 1837 Read More