Equity and trust

Question
Until her retirement 25 years ago, Adela Arletti was a highly successful concert-guitarist. Much to her regret, her marriage did not produce any children and her husband predeceased her. Once she was no longer tourin” rel=”nofollow”>ing the world and givin” rel=”nofollow”>ing musical performances, she offered her services to her Local Authority as a foster-parent, in” rel=”nofollow”>in which capacity she was able to provide lovin” rel=”nofollow”>ing care to over 50 children. Some of these children were very young and Adela looked after them whilst the Local Authority was makin” rel=”nofollow”>ing arrangements for their permanent adoption.
Adela enjoyed a close relationship with her three nieces (the daughters of her only sister) but less so, on a personal basis, with her brother’s son Denzel, who acted as her busin” rel=”nofollow”>iness advisor for many years and whom she paid generously durin” rel=”nofollow”>ing the entire period he worked for her. Denzel was annoyed by her decision to retire at a fairly young age to look after children with whom she had no connection but he never shared these feelin” rel=”nofollow”>ings to Adela. [TP: these two paragraphs are IRRELEVANT and bear no relation to the question.]
In addition to a collection of very valuable guitars which she amassed durin” rel=”nofollow”>ing her career, Adela established Rain” rel=”nofollow”>inbow Limited, an extremely successful recordin” rel=”nofollow”>ing-company in” rel=”nofollow”>in which she held 800 shares worth over £8 million. She also owned many origin” rel=”nofollow”>inal orchestral music-scores datin” rel=”nofollow”>ing from the early days of the music in” rel=”nofollow”>industry.
Last year, Adela made a Will [TP: so what follows are testamentary trusts, havin” rel=”nofollow”>ing the same formalities as wills generally under s.9 Wills Act 1837] in” rel=”nofollow”>in which she appoin” rel=”nofollow”>inted her solicitor, Russell Rance, as executor and trustee. The Will contain” rel=”nofollow”>ins the followin” rel=”nofollow”>ing provisions:
(a) To my nephew, Denzel, 500 of my shares in” rel=”nofollow”>in Rain” rel=”nofollow”>inbow Limited in” rel=”nofollow”>in the defin” rel=”nofollow”>inite conviction that he will sell them and divide the proceeds equally between all those whom I have ever fostered;
(b) My six most highly-valued guitars on trust for my nieces, Fern, Summer and Pansy, Fern and Summer to have those guitars which Pansy does not want (Pansy is to have a maximum of 2 guitars);
(c) To Russell Rance, the remain” rel=”nofollow”>inder of my estate to be divided as he considers appropriate amongst those who attended every televised concert where I performed durin” rel=”nofollow”>ing the fin” rel=”nofollow”>inal year of my career and recorded the event on their mobile device to remin” rel=”nofollow”>ind them how well I played. If Russell does not thin” rel=”nofollow”>ink this is a good idea, then the bulk of it is go to his daughter, Flavia, with the rest to the Disabled Musicians Foundation (DMF).

(d) To my nephew, Denzel, 500 of my shares in” rel=”nofollow”>in Rain” rel=”nofollow”>inbow Limited [TP: certain” rel=”nofollow”>inty of subject matter; shares are in” rel=”nofollow”>intangible property; these are shares in” rel=”nofollow”>in one company (not many); no need to segregate shares; are there sufficient shares remain” rel=”nofollow”>inin” rel=”nofollow”>ing: there seem to be; Hunter v. Moss (1994); compare with Re London Win” rel=”nofollow”>ine Co (Shippers) Ltd [1986]] in” rel=”nofollow”>in the defin” rel=”nofollow”>inite conviction [TP: certain” rel=”nofollow”>inty of in” rel=”nofollow”>intention; Re Kayford [1975], Megarry J; Wright v. Atkyns [1823] [Lord Eldon]; the two words defin” rel=”nofollow”>inite and conviction both appear to be sufficiently imperative] that he will sell them and divide the proceeds equally between all those whom I have ever fostered [TP: certain” rel=”nofollow”>inty of objects: fixed trust (divide proceeds equally between all); as it is a fixed trust, Denzel must know who all the beneficiaries are; both conceptual and evidential certain” rel=”nofollow”>inty are therefore required; the complete list test in” rel=”nofollow”>in IRC v. Broadway Cottages Trust [1955]; Re Gulbenkian [1970] ‘class ascertain” rel=”nofollow”>inability rule’; those whom I have ever fostered is conceptually certain” rel=”nofollow”>in; evidential certain” rel=”nofollow”>inty: discuss the cases of Re Eden [1957] and Re Benjamin” rel=”nofollow”>in [1902]] ;
(e) [TP: Russell appears to be trustee here; certain” rel=”nofollow”>inty of in” rel=”nofollow”>intention, clearly, appears to have been satisfied] My six most highly-valued guitars [TP: clearly more than six guitars constitute the collection; s.21(1)(b) AJA 1982, what did Adela mean by “highly-valued”, in” rel=”nofollow”>in terms of monetary value or non-monetary value (e.g. the six guitars she had, from her personal perspective, ‘most highly valued’; s.21(2) AJA 1982, admission of extrin” rel=”nofollow”>insic evidence: the use of the hyphen appears to in” rel=”nofollow”>indicate in” rel=”nofollow”>in terms of monetary value and expert evidence may be able to be relied on here; problems of segregation appear not to arise as the six guitars would be determin” rel=”nofollow”>ined in” rel=”nofollow”>in terms of their value, assumin” rel=”nofollow”>ing the type of value anticipated can be established] on trust for my nieces, Fern, Summer and Pansy, Fern and Summer to have those guitars which Pansy does not want (Pansy is to have a maximum of 2 guitars) [TP: Pansy has died before apparently makin” rel=”nofollow”>ing her selection, Boyce v. Boyce, automatic resultin” rel=”nofollow”>ing trust; however, what is this “somethin” rel=”nofollow”>ing important” Pansy has told her sisters they need to fin” rel=”nofollow”>ind among her personal possessions (?), we know that Pansy had seen Adela’s will because Adela told Fern that she had, this might suggest that the “somethin” rel=”nofollow”>ing important” in” rel=”nofollow”>indicated Pansy’s selection; therefore, Pansy’s selection will devolve to her estate under her own will, if she has left one, or under the in” rel=”nofollow”>intestacy rules to her own next of kin” rel=”nofollow”>in] [TP: if we assume that Pansy has made her choice, we can then apply the equitable maxim ‘equity is equality’ and the rule in” rel=”nofollow”>in Re Knapton; thus, Fern and Summer (in” rel=”nofollow”>in accordance with the maxim) could each take two of the four remain” rel=”nofollow”>inin” rel=”nofollow”>ing most highly-valued guitars, Fern (Re Knapton) bein” rel=”nofollow”>ing able to select her two on account of bein” rel=”nofollow”>ing named first in” rel=”nofollow”>in the will (Summer takin” rel=”nofollow”>ing the two remain” rel=”nofollow”>inin” rel=”nofollow”>ing).] [TP: certain” rel=”nofollow”>inty of objects: yep! The beneficiaries are clearly defin” rel=”nofollow”>ined.] ;
(f) [Adela is the donor of a power, Russell the donee of a fiduciary power (Russell is both executor and trustee under the will) (Russell, therefore, is under a fiduciary duty to consider whether to distribute or not: Re Hay’s ST [1982]; this is a power and not a trust because there is a gift over in” rel=”nofollow”>in default of appoin” rel=”nofollow”>intment. It does not matter that the gift over may be in” rel=”nofollow”>invalid, Miley v. Cape (Re Sprague) (1880), it is still a power; this is because such a gift over is in” rel=”nofollow”>inconsistent with the imperative nature of a trust: Re Mills [1930]. This bein” rel=”nofollow”>ing a power, Russell only has to consider whether or not to make a distribution – he is not compelled to make any distribution at all] To Russell Rance, the remain” rel=”nofollow”>inder of my estate [i.e. min” rel=”nofollow”>inus the 500 shares and the six most highly-valued guitars; this would appear to satisfy the requirement of certain” rel=”nofollow”>inty of subject matter; segregation does not apply (in” rel=”nofollow”>in respect of a trust / power made by will)] to be divided as he considers appropriate amongst those who attended every televised concert where I performed durin” rel=”nofollow”>ing the fin” rel=”nofollow”>inal year of my career and recorded the event on their mobile device to remin” rel=”nofollow”>ind them how well I played [lack of certain” rel=”nofollow”>inty of objects?: it might be impossible to establish (conceptual uncertain” rel=”nofollow”>inty) where Adela performed durin” rel=”nofollow”>ing the fin” rel=”nofollow”>inal year of her career (what constitutes the fin” rel=”nofollow”>inal year of her career?), although it may be possible to establish every televised concert, and recordin” rel=”nofollow”>ing the event on their mobile device (is conceptually certain” rel=”nofollow”>in). Capriciousness: is there any sensible lin” rel=”nofollow”>ink between the settlor and the potential appoin” rel=”nofollow”>intees to whom the done of the power may choose to make a distribution? Re Manisty’s Settlement [1974]. Note, though, that the power would not fail (on the basis of admin” rel=”nofollow”>inistrative unworkability) because the class of objects is too wide (again” rel=”nofollow”>in, Re Manisty’s). In the event, that we conclude that there exists both conceptual certain” rel=”nofollow”>inty (personally, I have my doubts) and that capriciousness has not arisen (similarly, I regard this as capricious), we would still need to satisfy evidential certain” rel=”nofollow”>inty. That is, satisfaction of the limited need for evidential certain” rel=”nofollow”>inty: there must be at least one potential appoin” rel=”nofollow”>intee within” rel=”nofollow”>in the class of beneficiaries who is able to supply factual proof (evidence) that he/she is within” rel=”nofollow”>in the class of persons specified by the donor of the power. No in” rel=”nofollow”>indication has been made as to whether such a person exists. “Any given postulant” test: Re Gestetner’s (1953), Re Gulbenkian [1970] and Public Trustee v. Butler (in” rel=”nofollow”>in respect of powers) total evidential certain” rel=”nofollow”>inty is not needed: although it will still be necessary for the actual claimant(s) to whom a distribution is made (if any) to prove that he or she is within” rel=”nofollow”>in the class specified by the donor. The key poin” rel=”nofollow”>int here is that the power will not now be in” rel=”nofollow”>invalidated for a claimant who can successfully establish that he/she is within” rel=”nofollow”>in the class, just because it cannot be said of any other potential person whether or not he/she is or is not factually (evidentially) within” rel=”nofollow”>in the class. (Tracin” rel=”nofollow”>ing the physical whereabouts of appoin” rel=”nofollow”>intees is unlikely to arise in” rel=”nofollow”>in the context of a power because the donee is under no obligation to make a distribution at all and even if he decides to make a distribution, he has no obligation to do so to every beneficiary/appoin” rel=”nofollow”>intee within” rel=”nofollow”>in the class described by the settlor/donor. He will probably make a selection, in” rel=”nofollow”>in practical terms, amongst only those persons whom he can readily trace in” rel=”nofollow”>in a physical sense.)
Therefore, the property is likely to pass under the gift over in” rel=”nofollow”>in default]. If Russell does not thin” rel=”nofollow”>ink this is a good idea, then the bulk of it [uncertain” rel=”nofollow”>inty of subject matter, because the word ‘bulk’ is in” rel=”nofollow”>incapable of one sin” rel=”nofollow”>ingle objective meanin” rel=”nofollow”>ing: see Palmer v. Simmonds (1854). Therefore, with the subject matter of the gift over bein” rel=”nofollow”>ing uncertain” rel=”nofollow”>in, the gift will be in” rel=”nofollow”>invalid due to lin” rel=”nofollow”>inguistic uncertain” rel=”nofollow”>inty of subject matter. Here a resultin” rel=”nofollow”>ing trust will arise because the property which was supposed to pass to Flavia cannot be calculated such that it becomes impossible to calculate the property which is supposed to pass to the DMF. Thus, all the property which would otherwise have been distributed under the gift over in” rel=”nofollow”>in default of appoin” rel=”nofollow”>intment will in” rel=”nofollow”>instead revert to the settlor’s estate.] is go to his daughter, Flavia, with the rest to the Disabled Musicians Foundation (DMF).
The Will also states:
‘All my old friends may each select an orchestral music-score from my collection of origin” rel=”nofollow”>inal scores. All such items left at the end of one year are to go to Russell Rance as above.’
Flavia is Adela’s goddaughter, Adela havin” rel=”nofollow”>ing known Russell Rance well from their student days.

Last month, Adela was killed by a shark whilst scuba-divin” rel=”nofollow”>ing in” rel=”nofollow”>in the Caribbean and, on receivin” rel=”nofollow”>ing this news, Pansy sadly suffered a massive heart attack from which she died a few days later. Pansy had previously told her sisters that there was, “somethin” rel=”nofollow”>ing important”, they needed to fin” rel=”nofollow”>ind amongst her personal possessions and read should Adela predecease her. Before Adela left for the Caribbean, she mentioned to Fern that Pansy had seen a draft copy of Adela’s Will.

Advise Russell Rance upon the validity and effect of clauses (a), (b), (c) and the supplemental clause contain” rel=”nofollow”>ined in” rel=”nofollow”>in Adela’s Will.

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