Trusts: certainty of objects? Quick question

In will:

Three quarters of my rare stamps collection on trust for my beloved nephews, and the remaining quarter to my sister-in-law.

Is one of the issues here certainty of objects? That we don't know which "nephew" is beloved? I also saw another question where something was put on trust for "beautiful children."

Also issue of subject matter since we don't know "which stamps" go to who (London Wine case).

Hi there! First of all, I noticed the time you posted this, do make sure you get some sleep during revision, you will be better for it and so will your sanity

I had a similar provision in an essay I did during the year for three certainties.

Objects
First of all, is it a fixed trust or a discretionary trust? Fixed trusts mean that the beneficiary will get a pre-determined share at some point, whereas in the case of discretionary trusts, the beneficiaries may not receive anything because the trustees need to exercise some discretion vested in the settlor, before transferring the property to the potential beneficiaries.

This case seems like a fixed trust for the sister-in-law and likely for the nephews as well, so apply the IRC v Broadway Cottages 'complete list' test which is still good law for fixed trusts (although Oakley disagrees!).

However, I would go on to consider the alternative. Has the settlor created some discretion for the trustees? In this case, it looks more like a trust power (aka discretionary trust) rather than a mere power, so McPhail v Doulton allows for the 'given postulant' test to apply to discretionary trusts as well as mere powers. So you would go on to say that if the inclusion of 'beloved' has created a discretion, the trustees need to use the given postulant test to ascertain whether each nephew is within the class of objects. Refer to the terrible application of this test in Re Baden's (No 2) where the best judgment you should refer to is that of Sachs LJ who held that the given postulant test means that as long as the class of objects is conceptually certain, the gift won't fail for evidential uncertainty, and it is for the postulant to prove that they belong to the class, and if they can't prove that, they are outside of the class.

But I think your main problem here is conceptual uncertainty. It could be argued that 'beloved' has created conceptual uncertainty, and this needs to be resolved by looking at Re Coxen and Re Tuck's. In Re Coxen, a testator put his house on trust for his wife on the condition that she would lose the house if "in the opinion of the trustees she ceased permanently to reside there." Jenkins J held that you resolve uncertainty by giving powers to the trustees. In Re Tucks, Lord Denning *obiter* suggested that there is nothing wrong in principle with the court allowing a third party to determine such matters (a Chief Rabbi in that case).

Stamps
The trust property has to be clearly defined or capable of being ascertained. Here, 3/4 of a rare stamp collection is talking about identifying a specific trust property out of a larger amount. Your starting point, unfortunately given the bad state of the law, is to ask whether the stamps are tangibles or intangibles.
Stamps are quite clearly tangible property. Go to Re London Wine and Re Goldcorp - they tell you that, in essence, segregation of the trust property from the larger bulk is of paramount importance in terms of tangible property. The question would be whether the testator has segregated the three quarters of the stamps from the rest of the trust property. If he hasn't segregated the stamps, the subject matter will likely fail for being uncertain - the rationale is that tangible property is often distinguishable (e.g. the trial judge's example in Re London Wine of corked wine) and this is very relevant in terms of stamp collections - the whole point in such a collection arguably is to collect different varieties etc.

Anyway, it looks as though the objects are likely to be ascertainable, but the subject matter may fail for being uncertain if the testator hasn't segregated it.... I think!

As far as I know, segregation is not relevant for testamentary trusts - the testator can choose which shares are to be distributed (Re Clifford, Re Cheadle). "Rare" could cause problems though (Palmer v Simmons).

I have never read that before. Can you set out the facts and ratio decidendi of these cases if possible?

But I think your main problem here is conceptual uncertainty. It could be argued that 'beloved' has created conceptual uncertainty, and this needs to be resolved by looking at Re Coxen and Re Tuck's. In Re Coxen, a testator put his house on trust for his wife on the condition that she would lose the house if "in the opinion of the trustees she ceased permanently to reside there." Jenkins J held that you resolve uncertainty by giving powers to the trustees. In Re Tucks, Lord Denning *obiter* suggested that there is nothing wrong in principle with the court allowing a third party to determine such matters (a Chief Rabbi in that case).

I think Tuck is a lot more positive than that. To me, Tuck says that appointing an arbiter is certainty of objects.

Ah okay. My only problem with Tuck is that Lord Denning was in the minority on that point. The other judges reached the same conclusion that an "approved wife" was not uncertain for other reasons. Is this really the ratio for Tuck?

Not for Tuck, but two things:

1. I think Tuck backs up Leek(1969) where the judgement refers to the trustees as being appointed as arbiters, and they are free to decide (in this case) who does or doesn't have a moral claim (to the subject matter).

2. Lord Denning being in the minority is normally fairly persuasive precedent.

Hi there! First of all, I noticed the time you posted this, do make sure you get some sleep during revision, you will be better for it and so will your sanity

I had a similar provision in an essay I did during the year for three certainties.

Objects
First of all, is it a fixed trust or a discretionary trust? Fixed trusts mean that the beneficiary will get a pre-determined share at some point, whereas in the case of discretionary trusts, the beneficiaries may not receive anything because the trustees need to exercise some discretion vested in the settlor, before transferring the property to the potential beneficiaries.

This case seems like a fixed trust for the sister-in-law and likely for the nephews as well, so apply the IRC v Broadway Cottages 'complete list' test which is still good law for fixed trusts (although Oakley disagrees!).

However, I would go on to consider the alternative. Has the settlor created some discretion for the trustees? In this case, it looks more like a trust power (aka discretionary trust) rather than a mere power, so McPhail v Doulton allows for the 'given postulant' test to apply to discretionary trusts as well as mere powers. So you would go on to say that if the inclusion of 'beloved' has created a discretion, the trustees need to use the given postulant test to ascertain whether each nephew is within the class of objects. Refer to the terrible application of this test in Re Baden's (No 2) where the best judgment you should refer to is that of Sachs LJ who held that the given postulant test means that as long as the class of objects is conceptually certain, the gift won't fail for evidential uncertainty, and it is for the postulant to prove that they belong to the class, and if they can't prove that, they are outside of the class.

But I think your main problem here is conceptual uncertainty. It could be argued that 'beloved' has created conceptual uncertainty, and this needs to be resolved by looking at Re Coxen and Re Tuck's. In Re Coxen, a testator put his house on trust for his wife on the condition that she would lose the house if "in the opinion of the trustees she ceased permanently to reside there." Jenkins J held that you resolve uncertainty by giving powers to the trustees. In Re Tucks, Lord Denning *obiter* suggested that there is nothing wrong in principle with the court allowing a third party to determine such matters (a Chief Rabbi in that case).

Stamps
The trust property has to be clearly defined or capable of being ascertained. Here, 3/4 of a rare stamp collection is talking about identifying a specific trust property out of a larger amount. Your starting point, unfortunately given the bad state of the law, is to ask whether the stamps are tangibles or intangibles.
Stamps are quite clearly tangible property. Go to Re London Wine and Re Goldcorp - they tell you that, in essence, segregation of the trust property from the larger bulk is of paramount importance in terms of tangible property. The question would be whether the testator has segregated the three quarters of the stamps from the rest of the trust property. If he hasn't segregated the stamps, the subject matter will likely fail for being uncertain - the rationale is that tangible property is often distinguishable (e.g. the trial judge's example in Re London Wine of corked wine) and this is very relevant in terms of stamp collections - the whole point in such a collection arguably is to collect different varieties etc.

Anyway, it looks as though the objects are likely to be ascertainable, but the subject matter may fail for being uncertain if the testator hasn't segregated it.... I think!