Three Certainties - Resolving Uncertainties

Resolving Uncertainties

Drafters use three principal devices to resolve problems of potential uncertainty. These are:

1. To provide that an expert can give advice as to who is or is not a beneficiary;
2. to give the trustees power to decide who is or is not a beneficiary;
3. and to allow the trustees to grant property to almost anyone, hoping this will reduce the risk of uncertainty.

The first device has been approved by the courts: in Re Tuck's Settlement Trusts, Lord Denning allowed the court and trustees to ask the Chief Rabbi about an issue within the (Jewish) testator's will. The second device was condemned as ineffective by Jenkins LJ in Re Coxen, when he wrote:

If the testator had sufficiently defined the state of affairs in which the trustees were to form their opinion he would not have saved the condition from invalidity on the ground of uncertainty merely by making their opinion the criterion.

As such, simply giving the trustees this power was not enough to defeat uncertainties. If, however, the testator "had sufficiently defined" the way in which trustees should exercise their judgement, it would be valid. The final device is to give the trustees the power to give trust property to "anyone in the world" or to "anyone whom the trustees consider appropriate". This has two problems; firstly, the class could be too broad to be administratively workable, and second, the courts are unable to judge if the power has been exercised appropriately. However, in Re Hay's ST, Megarry VC held that, exercised properly, this sort of agreement could be administratively workable, and would not be immediately void.