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 general power of appointment to the said Diana Mary Rawstron and the said Rose Pearce jointly’. The executors said that this was not an absolute gift but was subject to a secret trust. The defendant said that it was a half secret trust which failed, so that the residue fell into intestacy.
Held: A secret trust was one where both the terms and very existence of te trust was hidde. A half secret trust was where the terms only were hidden, but not the fact of the trust. The gift in clause 6 was expressed as a simple gift of residue, and clause 6 contained no mention of a trust. The new will change dthe relevant wordings, and it was unrealistic to suggest that Lucian Freud did not have an appreciation of secret trusts.
In the light of (a) the natural and ordinary meaning of the words used in clause 6 of the Will, (b) the overall purpose of the Will, (c) the other provisions of the Will, (d) the material factual matrix when the Will was made and (e) common sense, and the Claimants’ interpretation of clause 6 of the Will was to be preferred to that suggested by the Defendant. The claim therefore succeeded.
Richard Spearman QC
 EWHC 2577 (Ch)
Administration of Justice Act 1982 21
England and Wales
Cited – Saltmarsh v Barrett HL 13-Jul-1861
A testator after directing payment of his debts, funeral and testamentary expenses and legacies, bequeathed some legacies to charities, and gave to three persons legacies of nineteen guineas each, and appointed them executors. He then bequeathed . .
Cited – Royal Society for The Prevention of Cruelty To Animals v Sharp and Others CA 21-Dec-2010
The Society appealed against an order construing a will. The will had made a gift of the maximum allowed before payment of inheritance tax, and then a gift of a house. The Society argued that the house gift should be deducted before calculation of . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Williams v Arkle HL 1875
The testator had a sister, a wife, and two illegitimate children. His appointed George Arkle (‘GA’), if GA should survive him, his executor and trustee, but if GA should die in his lifetime he appointed Benjamin Arkle (‘BA’). He then gave ‘the . .
Cited – In re Rees CA 1950
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 . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 31 October 2021; Ref: scu.535481