Express Trusts Case Table
Case and Facts Judgment (Ratio) Judgment (Dissenting – if applicable) Critical Analysis
Re Baden (No 2) Megaw LJ: it was not necessary to Sachs LJ: courts would never be Virgo (pg102):
Evidential certainty in discretionary show that particular person either was defeated by evidential uncertainty. Which approach is preferable?
trusts or was not a member of the class, Once the meaning of the class was Go back to the essential test
because it was not necessary to clear, it was simply a question of fact identified by Lord Wilberforce in
Settlor (who since died) created a ascertain every member of the class on the evidence whether a person fell McPhail v Doulton, namely
trust ‘for the benefit of any of the for a discretionary trust to be valid. within that class. If he cannot prove it, whether:
officers and employees or ex- He suggested that it was enough that he is not in the trust. ‘it could be said with certainty
officers or ex-employees of the it could be shown of a substantial ‘it is interesting to observe that no whether any given individual was
company or to any relatives or number of objects that they were case was cited to use in which a court or was not a member of the class,
dependants of any such person’. within the class. has actually decided that a trust was and [the trust] did not fail simply
(Clause 9a) What is meant by substantial invalid on account of the use of [the because it was impossible to
number is a matter of word relative]…If this is due to a ascertain every member of the
The executors of the Settlor wanted common sense and degree in tendency to construe deeds and wills class’
to argue that the trust was not valid, respect of the particular trust so as to give effect to them rather
as the property would then become than to invalidate trusts, that is an Stamp LJ’s approach is the most
absorbed by the estate. Stamp LJ: the test of evidential approach which is certainly in accord consistent with this
certainty required it to be shown of with modern thought’ ‘The second part of Lord
Executors submitted that the words any given person that they either Wilberforce’s crucial dictum
‘relatives’ and ‘dependants’ were or were not within the class. If All three judges agree that makes it clear that it is not
imports such an uncertainty that there were uncertainty about any one dependants are sufficient necessary to ascertain the whole of
the trusts as a whole are void. person as to whether or not they were conceptually certain and the class. But the first part of the
within the class, the trust would fail. evidentially certain: dictum makes clear that it must be
The test to be applied to each of E.g. ‘relatives’ defined as ‘Dependent probably means possible to say of any given person
these words is ‘can it be said with descants of common dependent for the ordinary necessaries that they were or were not within
certainty that any given individual is ancestor, would make the of life for a person of that class and the class. If this cannot be shown,
or is not a member of the class? – trust void as this would be position in life. Thus the financial and it follows that the trustees could
per Lord Wilberforce [1971] AC difficult to prove. However, social position of the recipient of not be sure whether they should
424, 450 since he defined the concept compensation would have to be taken distribute to that person or not, and
as meaning the next of kin, into account’ – Sachs quoting also what the range of the class
he concluded that it was Simmons v White Brothers [1899] 1 might be. The trust should
evidentially certain. QB 1005, 1007, at 21 consequently be held to be void
for uncertainty of objects’
Case and Facts Judgment (Ratio) Judgment (Dissenting – if applicable) Critical Analysis
Re Baden (No 2) Megaw LJ: it was not necessary to Sachs LJ: courts would never be Virgo (pg102):
Evidential certainty in discretionary show that particular person either was defeated by evidential uncertainty. Which approach is preferable?
trusts or was not a member of the class, Once the meaning of the class was Go back to the essential test
because it was not necessary to clear, it was simply a question of fact identified by Lord Wilberforce in
Settlor (who since died) created a ascertain every member of the class on the evidence whether a person fell McPhail v Doulton, namely
trust ‘for the benefit of any of the for a discretionary trust to be valid. within that class. If he cannot prove it, whether:
officers and employees or ex- He suggested that it was enough that he is not in the trust. ‘it could be said with certainty
officers or ex-employees of the it could be shown of a substantial ‘it is interesting to observe that no whether any given individual was
company or to any relatives or number of objects that they were case was cited to use in which a court or was not a member of the class,
dependants of any such person’. within the class. has actually decided that a trust was and [the trust] did not fail simply
(Clause 9a) What is meant by substantial invalid on account of the use of [the because it was impossible to
number is a matter of word relative]…If this is due to a ascertain every member of the
The executors of the Settlor wanted common sense and degree in tendency to construe deeds and wills class’
to argue that the trust was not valid, respect of the particular trust so as to give effect to them rather
as the property would then become than to invalidate trusts, that is an Stamp LJ’s approach is the most
absorbed by the estate. Stamp LJ: the test of evidential approach which is certainly in accord consistent with this
certainty required it to be shown of with modern thought’ ‘The second part of Lord
Executors submitted that the words any given person that they either Wilberforce’s crucial dictum
‘relatives’ and ‘dependants’ were or were not within the class. If All three judges agree that makes it clear that it is not
imports such an uncertainty that there were uncertainty about any one dependants are sufficient necessary to ascertain the whole of
the trusts as a whole are void. person as to whether or not they were conceptually certain and the class. But the first part of the
within the class, the trust would fail. evidentially certain: dictum makes clear that it must be
The test to be applied to each of E.g. ‘relatives’ defined as ‘Dependent probably means possible to say of any given person
these words is ‘can it be said with descants of common dependent for the ordinary necessaries that they were or were not within
certainty that any given individual is ancestor, would make the of life for a person of that class and the class. If this cannot be shown,
or is not a member of the class? – trust void as this would be position in life. Thus the financial and it follows that the trustees could
per Lord Wilberforce [1971] AC difficult to prove. However, social position of the recipient of not be sure whether they should
424, 450 since he defined the concept compensation would have to be taken distribute to that person or not, and
as meaning the next of kin, into account’ – Sachs quoting also what the range of the class
he concluded that it was Simmons v White Brothers [1899] 1 might be. The trust should
evidentially certain. QB 1005, 1007, at 21 consequently be held to be void
for uncertainty of objects’
