PART A – THREE CERTAINTIES AND CONSTITUTION
INTRODUCTION
For a will to be properly executed, the three certainties and constitution must be present. As discussed in Knight v
Knight, the three certainties are: certainty of intention, that the settlor intended to create a trust and not a gift or a
power; certainty of subject matter, which is what the property is to comprise the trust fund; certainty of object, who
the beneficiaries under the trust are. As long as the will is made in accordance with section 9 of the Wills Act 1837, all
clauses in the will are validly constituted. In regards to the present scenario, Jo Grand is the testator. Each clause will
be taken in turn, assessing whether they are sufficiently certain and therefore valid. Then it will be discussed whether
Jo Grand has successfully made an inter vivos gift of the shares to Malcolm.
CLAUSE A
Clause A is valid. Jo Grand has appointed Katherine Bryan as her executrix, as such Katherine is acting in a fiduciary
capacity and so any finding of a power will be a fiduciary power. The basis of a will is that when the testator dies, their
executor (Katherine) will hold all property temporarily on a trust until they transfer the property to the appropriate
trustees according to the will.
CLAUSE B
In relation to clause B, certainty of intention is sufficed because the Jo Grand has explicitly said that she wants to leave
the collection of modern art to Sarah and Penny. Certainty of object is sufficed as Sarah and Penny are named.
Certainty of subject matter is the matter of contention within this clause. In Boyce v Boyce, the testator stated words
to the effect of ‘the eldest can choose which property they want, the youngest can have whichever is left’, the eldest
daughter then died before the testator, and so was unable to exercise her choice, thus the trust in favour of the
second daughter failed as it was uncertain what property the trust applied to. If Sarah who is the beneficiary with the
power of choice were to be deceased, then this could follow Boyce v Boyce. However, on the assumption that Sarah is
still alive, it is likely to follow Re Golay’s Will Trusts where the testator left property for his friend ‘to enjoy one of my
flats and receive a reasonable income from one of my properties’, whilst this was uncertain, the court engaged with
the beneficiary and allowed her to choose. Applying Re Golay’s Will Trusts, the court would likely engage with Sarah
and Penny, allow Sarah the right to choose, and allow Penny the leftover property. The court also engaged with the
beneficiaries in Re Knapton, where the will concerned did not contain a method of distribution, and so the court
allowed the beneficiaries to choose a property in the order in which they were listed. As Jo grand has listed the
method of distribution, this is likely to follow Re Golay’s and be deemed sufficiently certain. Thus, Sarah would be able
choose her favourite two paintings and Penny would be able to have ‘whatever is left’.
CLAUSE C
In regards to clause B, certainty of intention is sufficed as Jo Grand has intended to create a discretionary trust.
Certainty of subject matter is also clear, the £500,000. The issue is regarding certainty of objects. Originally, both fixed
and discretionary trusts had the same test for certainty of object; the ‘fixed list test’ (IRC v Broadway Cottages). The
‘any given postulant’ test from Re Gulbenkian was subsequently adopted as the relevant test for certainty of object
under a discretionary trust in McPhail v Doulton. This test means that a trust is valid and has certainty of object if it
can be said with certainty that any given individual ‘is or is not’ a member of the class. This went back to court in Re
Baden (no 2) as the issue arose of a person who could not be categorised as being within or outside the class of
beneficiaries, and this would invalidate the trust. This test was subsequently given three different refinements by each
judge in Re Baden (2). For certainty of objects there needs to be conceptual certainty and administrative workability,
but there does not need to be evidential certainty. Even if ‘young’ can be classed as a core concept (as ‘any of my old
friends’ was in Re Gibbard), the selection by the trustee of ‘talented’ is unlikely to be capable of objective
ascertainment, as it is too subjective to be conceptually certain. Even in the unlikely event that this would be
, considered sufficiently certain, there would be the issue of administrative workability, as the number of ‘talented
comedians’ in Greater Manchester might be too much for a sensible admin of a trust (R v District Auditor ex parte
West Yorkshire County Council). Emery contends that the precise scope of administrative workability is ‘by no means
clear’ as there is no discernible criteria according to which the task of selection should be approached. Ultimately, the
clause will be invalid for want of certainty of object. Therefore, the £500,000 would pass to Malcolm, the residuary
legatee.
CLAUSE D
Certainty of subject matter is clear, the £100,000. However, certainty of intention is disputable as it is unclear as to
whether Jo Grand has intended to create a trust, with the trustee being Bob and the beneficiaries being her nieces, or
whether she intends for him to take the property absolutely as a gift. Upon analysis of the wording, ‘optimistic
expectation’ appears to be precatory wording, imposing only a moral obligation on Bob, as opposed to mandatory
wording, which would create trust obligations. In Re Adams and Kensington Vestry, a testator left property to his wife
using the wording ‘in full confidence that she will devise it to my children as she sees fit’. The court held that the
wording imposed a moral obligation and no legal trust obligations, and so she took the property for herself absolutely.
In comparison, in Comisky v Bowring-Hanbury a testator left property to his wife ‘in full confidence that she will
distribute it to my nieces as she sees fit’, the court held that the wording did impose trust obligations. Alastair Hudson
speculates that the difference in the court’s decision was due to the difference in relationship, as a mother is more
likely to benefit her children because money tends to fall naturally down the line, than she would be to benefit her
husband’s nieces. As Bob is her brother, it can be inferred that Jo Grand’s nieces are likely to be his daughters. In this
instance, applying Hudson’s logic, this would mean that this case is likely to follow Comisky, the wording will be
regarded as precatory and Bob will take the £100,000 as an absolute gift for himself with only a moral obligation to
benefit his daughters (Jo Grand’s nieces). Certainty of object would therefore be Bob, and the clause would be valid.
CLAUSE E
In regards to Jo Grand leaving her shareholding to Grace, this will be sufficiently certain. Certainty of intention is
established; this appears to be a testamentary gift. Certainty of object is clear; the disposition is in favour of Grace.
Certainty of object is clear; it appears to be all of the shareholding. The only instance this would become contentious
would be if this was ‘the bulk of’ her shareholding (Palmer v Simmonds). However, this appears to be the entirety of
the shareholding and thus the clause will be sufficiently certain, and Grace will receive the shareholding.
CLAUSE F
Certainty of intention is sufficed; Jo Grand evidently wants the remainder of her property to go to Malcolm. Certainty
of object is established; the disposition is in favour of Malcolm. Certainty of subject matter is clear; the residue. This is
clear and can again be contrasted with ‘the bulk of the residue’ (Palmer v Simmonds). As it appears to be all of the
residue, this is sufficiently certain, and Malcolm will receive the residue of Jo Grand’s estate.
INTER VIVOS GIFT
If a donor wants to make a perfect inter vivos gift, they need to transfer the property to the donee with the intention
of making a gift. Here, it is not a perfect inter vivos gift as there is no transfer of shares, and ‘there is no equity…to
perfect an imperfect gift’ (Milroy v Lord).
An imperfect transfer is when the settlor has done all within their power to transfer the title, and something remains
outstanding which a third party needs to do. In Re Rose, the donee had signed and delivered the share transfer form,
but the shares were not registered. It was held that the gift was perfected in equity as soon as the settlor had done
everything that he could have done to divest himself of the shares. Whilst it could be seen that Jo Grand had done
everything within her power, as she did not sign the third section of the transfer form, this is unlikely to fall within the
scope of Re Rose. In Zeital v Kaye the donor handed the donee an incomplete, but signed share transfer form, and the
