Wills in Marks Tey and throughout the UK required ‘certainty’ in all specific legacies that people leave to their beneficiaries in their Wills
A pair of brothers (Terry and Tony) came to see me last year with a bit of a problem. They had been appointed as the trustees to their father’s (Brad’s) will who had died a few weeks beforehand. Apparently, Brad had been quite a well-to-do gent and had done quite well for himself having inherited the family fortune as a result of his father’s success as an inventor and he had collated a significant collection of religious art.
Brad’s brother and sister (Ed and Eve) had been appointed as his executors with the charity Oxfam standing as his residuary legatee. They did not have a problem with Clauses 2 to 6 of the will that gave specific legacies to Brad’s three ex-wives and his two children (Terry and Tony) but Terry and Tony also had to involve themselves in Clause 7 of the will since they were somewhat unclear about what they needed to do.
Specifically, Clause 7 of Brad’s will stated that:
“I appoint Terry and Tony as my trustees. They are to sell one third of my art collection and use the proceeds of sale to pay £1 to every person listed in the 2009 edition of the London telephone directory.”
Brad had clearly sought to create a trust under Clause 7 of his will that is a purely equitable obligation whereby Terry and Tony were given property or rights for or on behalf of another or others that must be vested in the trustee whether it is a legal estate, right or equitable interest. Therefore, Terry and Tony needed to exercise a fiduciary duty (i.e. expected to be loyal and honest to whom they owe the duty to) with regard to Brad’s beneficiaries that all the trustees must have conformed to including any powers attached to the trust because the trustees owe a duty of good faith to the administration of the trust above all else. Then, to establish a valid trust for Brad under his will, there must have been an intention because even if ‘trust’ is used in any document executed regarding an estate’s distribution, this does not guarantee what Brad wanted.
Generally, a will like Brad’s is to be considered as it was written. Moreover, every instrument that is testamentary in nature, or to affect a previous testamentary instrument, made by a person over the age of 18 of full capacity under section 7 of the Wills Act 1837 (as amended) is entitled to probate. However, a general intention regarding a trust’s creation will not suffice since a settlor may create a trust by manifesting an intention to create it. The reason for this is because the words or acts involved with a trust like Brad’s under his will must be considered sufficient to establish the trust. Therefore, Clause 7 of Brad’s will regarding the selling of one-third of his collection of religious art to pay £1 to every person listed in the 2009 London telephone directory needed to consider based on the recognition of three certainties – intention (i.e. what Brad aimed to achieve?), subject matter (i.e. what was involved?) and objects (i.e. who was to benefit?). Then, where Terry and Tony had property or rights they hold or are bound to exercise for or on behalf of another or others like Brad, or for the accomplishment of some particular purpose or purposes, then they held the property or rights in trust for that other or others, or for that purpose or purposes where the trust is certain. Terry and Tony also needed to be advised the words or acts regarding Brad’s property under Clause 7 needed to be sufficient to establish how his trustees were to act.
On this basis, it would seem that there was certainty of subject matter in Clause 7 of Brad’s will since the ‘gift’ to be distributed was one-third of Brad’s art collection that was measurable once it had/if it had already been valued and/or it is sold. Terry and Tony also must be advised there may be a certainty of intention because there are some specifics about how the ‘gift’ as trust property is then to be distributed. This is because, whilst using the proceeds of the sale of one-third of the art collection to pay £1 to everyone listed in the 2007 London telephone directory may be considered somewhat lengthy, this undertaking is arguably still sufficiently quantifiable for the purpose of its execution. However, Terry and Tony also needed to be advised that where any aspect of Brad’s estate’s distribution via the documents pertaining to Clause 7 of Brad’s will were found to be invalid, then the property would be returned to Brad’s estate to pass with his estate’s residue on a resulting trust to Oxfam (as the aforementioned residuary legatee). Moreover, where the trust property of one-third of Brad’s art collection is mixed with the other trust property, it may prove difficult to identify the trust property so the trust will then be considered invalid.
Additionally, Terry and Tony also needed to perform the duties attached by law to their administration as trustees. This is because a trust will be considered void unless it is actually in writing because a number of connected documents can actually provide the necessary writing. Then, Brad’s intention regarding the trust property of one-third of the art collection’s value could then be enforced by Terry and Tony. Terry and Tony were not then considered to be liable as trustees if the trust property is stolen or lost without default on their part whilst it is in their possession. It was also for Terry and Tony to take all reasonable measures considered necessary to obtain possession of the trust property where it is outstanding and to preserve and secure it from loss or potential loss. Terry and Tony also needed to be advised not to knowingly facilitate any conduct leading to a breach of trust or occasion loss or risk by establishing or abetting an adverse title or claim against the beneficiaries or to undertake a duty or put themselves in an inconsistent position. This is because Terry and Tony also need to be advised to perform the trust they have undertaken and assume the validity of their beneficiaries title until it is ‘negatived’. Therefore, if a trustee were to seek to personally profit out of a breach of trust, then they must account to the beneficiaries because any neglect or omission will constitute a breach of trust – although a trustee guilty of negligence or breach of contract is not necessarily guilty.
Terry and Tony needed to be advised that were they to act properly regarding the facts at the time when they acted (which were known or ought to have been known) then they were clearly not liable for their actions where a loss arises for the beneficiaries. However, Terry and Tony also had to be advised that where they were found to have either neglected or omitted to carry out their duties as described by the terms of Brad’s trust and the applicable law, then then would most likely be deemed liable for a breach of trust. This is because any neglect or omission for the trustees Terry and Tony to fulfill their duties and the concurrence or acquiescence of a trustee in a similar act, neglect or omission would have been deemed to be a breach. Therefore, the trustees had to act evenly between all beneficiaries and not unduly delay the payment or provision of the Clause 7 trust. Nevertheless, Terry and Tony were also not to sacrifice the interests of those entitled in remainder (i.e. the Oxfam charity) by realising the estate at an inopportune moment rather than in accordance with the terms of the trust.
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