Analysis
The public trustee brought a Part 8 claim concerning the construction of the will dated 22 June 1967 of Saral Kumar Bose (testator). The testator had been born in India on 3 May 1893 and had subsequently moved to England where he had worked as an electrical engineer for London Underground. He was married to Florence Katie Bose (widow) and had died childless on 13 September 1972. The widow had died on 23 May 1998. At the time of his death, the net value of the testator’s estate was £137,307 and on 17 September 2012 it comprised investments of £581,150 with unapplied income of £265,645.
The first defendant was the sole surviving executor of the widow and was joined to represent the interests of those entitled on the partial intestacy of the testator. The second defendant was a great niece of the testator and was joined to represent the descendants of the testator’s brothers and sisters.
Clause 3 of the will appointed the widow as sole trustee and entitled her to income for life and the right to take £5,000 from capital to spend on travelling and a further £5,000 to spend on medical treatment.
Clause 4 was intended to provide for the income if the widow remarried. A second trustee would automatically be appointed and the widow’s entitlement to income would reduce. The balance of income was to be:
‘… devoted to the benefit of my deserving relatives (descendants of my brothers and sisters) especially for furthering the education of my promising young (or even middle aged in special cases) relatives by means of scholarships…’
Clause 6 was intended to deal with the position after the widow’s death. The bank was to act as sole trustee and would be:
‘… empowered to grant, out of the net income, scholarships for education in India, British Isles or elsewhere to my promising relatives (descendants of my brothers and sisters, the individual names of whom will be shown in a list, to be supplied later on) and or to help (out of one quarter of the income as a maximum) the deserving materially hardship cases amongst my relatives.’
The public trustee asked whether clause 6 contained a trust or only powers. The first defendant argued that it contained a power, on the basis that the wording of clause 6 (’empowered’) contrasted with that of clause 4 (‘devoted’). The second defendant contended that it was inappropriate to assume that the testator in a homemade will used technical terms in their correct sense and it was right to assume that the testator had intended income to be applied in the same way during the widow’s remarriage as on her death.
It was common ground that there was no list of relatives of the kind referred to in clause 6, which required the effect of the phrase ‘my promising relatives (descendants of my brothers and sisters)…’ in clause 6 to be determined. The first defendant argued that the list was an essential part of the definition of the class without which there were no objects of the power and that ‘promising’ necessarily created uncertainty as it required a subjective judgment. The second defendant contended that in the absence of the list the words should be struck out, leaving what remained either sufficiently certain or merely a guide to the trustees.
The public trustee further asked the court to determine the effect of the words ‘to help… the deserving materially hardship cases amongst my relatives’ in clause 6. The first defendant argued that ‘deserving’ was inherently uncertain. The second defendant contended that any uncertainty in the word ‘deserving’ was overcome by its relation to ‘material hardship’.
Held
- 1. Clause 6 contains only powers. There is no suggestion that the testator was not fluent and literate. The language used was good and he understood the distinction between income and capital. The class and manner of the application of income is different between clause 4 and 6. In the circumstances, it cannot be assumed that the testator intended the application of income to be the same after his death as during the remarriage of the widow (paras [11]-[12]).
- 2. As to the power to grant scholarships, the part of the definition of the class that refers to the list cannot be blue pencilled out and the rest applied. The power therefore fails for uncertainty because it cannot be said whether any individual is or is not a member of the class, because the ingredient of their being on the list cannot be satisfied (para [14]). However, while it is not necessary to reach a concluded view, ‘promising’ is not uncertain within the context of scholarships for education (para [15]).
- 3. As to the power to help certain relatives, this part of clause 6 requires the trustee to select from those relatives that are ‘material hardship cases’ and from that subset those who are ‘deserving’. The test is whether it can be said with certainty whether any individual is or is not within the class. A distinction must be drawn between conceptual and evidential uncertainty. The concept of material hardship is sufficiently certain but there is great difficulty in distinguishing within the subset between those who are deserving from those who are not. This power is also invalid for uncertainty (para [18]).
Obiter: There is some difficulty with the second defendant’s point that even if words were uncertain they should not invalidate the provision because they are ‘merely a guide to the trustee’. If the word is added it is part of the qualification and if it is inherently uncertain then it invalidates the trust or power.
JUDGMENT THE CHANCELLOR : [1] This Part 8 claim issued by the public trustee on 21 February 2011 raises a number of questions concerning the true construction of the will dated 22 June 1967 of Saral Kumar Bose (the testator). The testator died on 5 June 1972. Probate of his will (the will) was granted …Continue reading "Public Trustee v Butler & anr [2012] EWHC 858 (Ch)"