The testator had devised property to the eldest of the sons of his nephew ‘who shall be a member of the Church of England and an adherent to the doctrine of that Church’.
Held: The will created a condition precedent or qualification in sufficiently certain terms.
Evershed MR identified the test of certainty for a condition subsequent and said that in the case of a condition precedent or qualification, no general or academic test is called for: ‘It has long been established that the courts (which are inclined against the divesting of gifts or estates already vested) will hold a condition subsequent void if its terms are such that (apart from mere difficulties of construction of the language or of the ascertainment of the facts) it cannot be clearly known in advance or from the beginning what are the circumstances the happening of which will cause the divesting or determination of the gift or estate.’
. . And ‘All that the claiming devisee has to do is at the relevant date to establish, if he can, that he satisfies the condition or qualification whatever be the appropriate test. If the formula is such as to involve questions of degree (as, prima facie, is implicit in any requirement of ‘adherence’ or ‘attachment’ to a particular faith or creed), the uncertainty of the test contemplated may well invalidate the formula as a condition subsequent but will not, in my judgment, necessarily do so in the case of a condition precedent; for if the claimant be able to satisfy any, or at least any reasonable test, is he disentitled to the benefit of the gift?’
A condition precedent that the devisee should at some relevant date be a tall man would be valid. Even though tallness is a matter of degree, a claimant who is six feet six inches tall could fairly be said to have satisfied the testator’s requirement judged by any reasonable standard. He contrasted that example with a condition requiring the devisee to be ‘a pure blooded Englishman’, words which would be incapable of any reasonably clear meaning or sensible definition at all.
In the circumstances before the Court: ‘it would not be right to say that the appellant could not seek to establish as a matter of fact that Reginald Seymour Allen was, at whatever may be held to be the relevant date, an adherent to the doctrine of the Church’, noting that the onus would be on the appellant to prove compliance with the condition. His Lordship found it unnecessary to attempt a full exposition of the meaning of the clause in the will, in the absence of the appellant’s evidence.
Birkett LJ expressed similar views as to principle and reached the same conclusion.
Romer LJ, dissented but applied what a similar principle, finding that an inquiry whether any particular individual was or was not an adherent to the doctrine of the Church of England (but not an inquiry as to whether a particular individual was or was not a member of the Church) would be doomed to failure from the start, on the ground that it would not be possible to answer that question in regard to anyone at all.
Judges:
Evershed LJ MR, Birkett LJ
Citations:
[1953] Ch 810, [1953] 1 All ER 308
Cited by:
Applied – Re Selby’s Will Trusts ChD 1966
. .
Applied – Re Tarnpolsk ChD 1958
It was impossible to give sufficient meaning to the phrase ‘a person of the Jewish race’, and the condition failed for conceptual uncertainty, even in a condition precedent. . .
Cited – Re Tuck’s Settlement Trusts CA 1-Nov-1977
By his will, Sir Adolph Tuck sought to ensure that his successors should be Jewish, and stated that the arbitrators of this must be the Chief Rabbi of his community. . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 04 May 2022; Ref: scu.510145
