The testator appointed a friend and his solicitor as executors and trustees of his will. He devised and bequeathed the whole of his property ‘(subject to payment of my funeral and testamentary expenses and debts) unto my trustees absolutely they well knowing my wishes concerning the same and I direct them to permit my brother . . to have and receive the rents and profits of my property Vardre Clydach . . during his lifetime.’ The will also included a charging clause authorising the solicitor and any professional person who might become an executor or trustee thereof to charge for professional services. The testator told his trustees when he made his will that he wished them to make certain payments out of his estate and to retain any surplus for their own use. After the payments directed by the testator had been made, a substantial sum remained in the hands of the surviving trustee. Vaisey J had held that the part of the estate not required to give effect to the testator’s wishes was undisposed of by his will and passed as on an intestacy.
Held: The solicitor’s appeal was dismissed. On the true construction of the will the gift was a fiduciary one to the trustees and not a gift to them upon a condition; that evidence was not admissible to show that the trustees took not a trust estate but a conditional gift; and that, accordingly, subject to the specific purposes indicated by the testator, the estate was undisposed of by the will and passed as on intestacy.
Lord Evershed MR said: ‘It is right to say that . . the cases show that slight indications may well suffice to persuade the court that the intention of the testator was not to create a trust estate in the devisee but to give him a conditional gift’. He then reasoned that: ‘I think that in this context, and in this will, the word ‘absolutely’ should be construed not as conferring a beneficial interest but as defining the extent of the interest in the property given, so as to confer upon the trustees the property given to them – and I borrow the language used by Cohen LJ during the argument – free of any fetter which would prevent their carrying out his express wishes.’ . . ‘But the matter does not end there, because the next phrase is, after referring to his wishes, ‘and [I] direct them to permit my brother . . to have and receive the rents . . ‘ [Counsel] said that the use of the word ‘permit’ indicated something less than the obligation of a trust; but the phrase is not merely ‘to permit’ but ‘I direct them to permit.’ I think that that is pre-eminently language which is apt to impose the obligation of trusteeship.’ . . ‘In any case, if so far the balance be a nice one between the two alternatives, we then have to consider the effect of cl. 4, the charging clause, which is the longest clause in the will. I do not want to over-emphasize the significance of it. I have already said that this is pre-eminently a lawyer’s will; and none but a lawyer, certainly, would have inserted a clause in this language. But it goes somewhat further than that, for on [Counsel’s] construction the only possible effect that this substantial clause, occupying, as I say, about a third of the whole document, could have, would be to enable the plaintiff, the solicitor, to throw upon his co-trustee and supposed co-beneficiary, Tom Hopkins, one half of the costs which the plaintiff’s firm would charge for carrying out the duties imposed on them – a result which I conceive would be the last thing that the plaintiff could have intended when he drew the will, or the testator when he executed it. I therefore come to the conclusion, agreeing with the judge on the first point, that this will, properly interpreted, confers on the two trustees an estate on trust and not a conditional gift.’
He then considered the second question raised by the appeal, namely whether evidence was admissible to show that, although the form of the will on its proper reading created only a trust estate in the trustees, it was the intention of the testator that they should take a beneficial interest. The Court of Appeal agreed with Vaisey J that such evidence was inadmissible, even if this might result in ‘having to come to a conclusion which probably defeated the wishes of the testator’.
Lord Evershed MR then observed: ‘in the general public interest it is not to be forgotten that Parliament has laid it down that prima facie a will disposing of the property of a deceased person must follow certain strict forms. These courts have also been very insistent on the importance of the principle that those who assume the office of trustees should not, so far as they fairly can prevent it, allow themselves to be in a position in which their interests and their duties conflict. This is a case in which the will, as I have said, was drawn by a solicitor, or by a member of a solicitor’s firm, and the claim is that that solicitor is entitled, either absolutely or jointly with another, to the whole beneficial interest. In the general public interest it seems to me desirable that if a testator wishes his property to go to his solicitor and the solicitor prepares the will, that intention on the part of the testator should appear plainly on the will and should not be arrived at by the more oblique method of what is sometimes called a secret trust.’
Judges:
Lord Evershed MR, Cohen, Asquith LJJ
Citations:
[1950] 1 Ch 204
Cited by:
Cited – Rawstron and Another (Executrices of The Estate of Lucian Freud) v Freud ChD 30-Jul-2014
The court considered the construction of a point in the deceased’s will. The clause said: ‘I GIVE all the residue of my estate (out of which shall be paid my funeral and testamentary expenses and my debts) and any property over which I have a . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 15 May 2022; Ref: scu.535826