Oakes et Al v Oakes et Al
| Jurisdiction | Bahamas |
| Judge | Malone, Snr. J. |
| Judgment Date | 09 September 1987 |
| Court | Supreme Court (Bahamas) |
| Docket Number | No. 539 of 1987 |
| Date | 09 September 1987 |
Supreme Court
Malone, Snr., J.
No. 539 of 1987
Mr. Alexiou for the plaintiffs.
Mr. W. Saunders for the 1st to 13th defendants.
Mr. P. Dunkley for the 14th defendant.
Mr. K. Seymour for the Attorney General
Will - Construction — Finding that property referred to in certain clauses of the will established charitable trusts — Other clause 5(c) purported to give property to niece — Property not owned by testatrix and therefore it fell into residue — Review of cases dealing with gifts in will.
The plaintiffs are the executors of the will of the deceased Shirley Lewis Oakes Butler and were granted probate by this Court on the 29 August 1986. They now seek the directions of the court with respect to the following questions:
“(1) That it may be determined whether on the true construction of Clause 4(a) of the said will the property therein referred to –
(a) is held by the plaintiffs upon trust for such persons considered by the plaintiffs to have been “friends or relatives” of the deceased immediately before her death in such shares between them as the plaintiffs may determine;
(b) is held on the trusts declared by the above mentioned Will concerning the deceased's residuary estate; or
(c) is held on some other and if so what trusts.
(2) That it may be determined on the true construction of the said Clause 4(a) whether the property therein referred to includes the whole of the deceased's personal (as opposed to real) property or the whole of such personal property not specifically disposed of by the said Will or, if neither, what is comprised in the “other personalty” CHECK therein referred to or in favour of some other and if so what persons.
(3) That it may be determined whether on the true construction of Clause 5(c) of the said Will the gift therein of “my New York apartment in “River House” has any and if so what effect.
(4) That it may be determined whether on the true construction of Clause 7 of the said Will the sum of B$100,000 therein referred to ought to be held on some and if so what charitable trust or whether the gift contained in the said Clause 7 fails and is of no effect.
(5) That it may be determined whether on the true construction of Clause 8 of the said Will the sum of US$100,000 therein referred to ought to be held on some and if so what charitable trusts or whether the gift contained in the said Clause 8 fails and is of no effect.”
The questions will be considered in turn save that questions (4) and (5) will be considered together.
With the decision of the House of Lords in In re Baden's Deed Trusts [1971] A.C. 424, some of the difficulties associated with the construction of trusts and powers were swept away, as in place of two different tests for determining the invalidity of a power and a trust on the ground of a conceptual uncertainty a majority of their Lordships adopted one test. The view the majority of their Lordships is expressed in the following passage from the judgment of Lord Wilberforce at p.456:
“The conclusion which I would reach, implicit in the previous discussion, is that the wide distinction between the validity test for powers and that for trust powers is unfortunate and wrong, that the rule recently fastened upon by the courts by Inland Revenue Commissioners v. Broadway Cottages Trust [1954] 3 All E.R. 120 ought to be discarded, and that the test for the validity of trust powers ought to be similar to that accepted by the House in In re Gulben kian's Settlements [1970] A.C. 508 for powers, namely, that the trust is valid if it can be said with certainty that any given individual is or is not a member of the class.”
It will be against that background that I shall consider clause 4(a). A clause of which the conditions are conditions precedent as the substance of it is not to divest any vested interest but to vest gifts in those who qualify as friends and relatives of the testatrix at the time of her death. Clause 4(a) is as follows:
“4(a) I Give and Bequeath unto my Trustees to divide amongst such of my friends and relatives living at the time of my death the jewellery, fine art and other personalty then owned by me in such shares and quantities as my Trustees may select and appoint to them. Any such jewellery not so appointed by my Trustees shall be disposed of as part of my residuary estate. It is my hope that in making said selections and appointments my Trustees will be guided by such suggestions I have made to them during my lifetime.”
A gift may be void because no definite meaning may be given to the words. But the fact that it may be difficult to ascertain the whereabouts or continued existence of some of the bets of a class cannot make void a condition precedent gift if the class is sufficiently defined by the donor. In In re Baden's Trusts (No. 2) 1972 Ch. D 607 it was not disputed that a person is a relative of an officer or employee or ex-officer or ex-employee, if both trace legal descent from a common ancestor. What was argued was that a part of the Gulbenkian test could never be satisfied in the case of a power to make payments to relatives. For it was argued that whilst it was possible to say of a given individual that he is a relative of someone else it could not be said with certainty that: “one person is not a relative of another save in cases where either is known to have illegitimate ancestry.” (see p.625 Letter G).
Brightman, J. rejected that argument. At p.626, he said:
“In my view this argument is fallacious. In practice, the use of the expression ‘relatives’ cannot cause the slightest difficulty. A supposed relative to whom a grant is contemplated would, in strictness be bound to produce the relevant birth and marriage certificates or other sufficient evidence to prove his or her relationship to an officer or ex-officer or employee or ex-employee. If the relationship is sufficiently proved, the trustee will be entitled to make the grant. If no sufficient evidence can be produced, the trustee would have no option but to decline to make a grant. I cannot see that any difficulty would arise in operating Clause 9. I do not see why the court should be constrained to hold Clause 9 void merely because countless persons exist who are not able to prove their relationship who are not even interested in proving their relationship and whom the trustees have no intention of benefitting.
It seems to me that such uncertainty as may be said to exist in consequence of the use of the word ‘relative’ in Clause 9 is mere difficulty of proof of non-relationship in circumstances which do not arise. What is required of a person to qualify, as a relative is perfectly clear. Such difficulty as may be conjured up by those who seek to attack Clause 9 arise only from the difficulty of proving a totally irrelevant negative.
Quite apart from what appeals to me as the common sense of the situation, there is a long line of cases in which powers to benefit relatives of any degree of relationship have been valid. The authorities start with Harding v. Glyn (1739) 1. Atk 469, which was decided in 1739 and is explained in Brown v. Higgs (1800) 5. Ves Jr. 495 and they continue through Supple v. Lowson (1773) 2 Amb. 728 down to modern times. The validity of such a power has been established for very many years and virtually unquestioned in modern times until this present case. I refer to Farwell on Powers 3rd Ed. (1916) p.528 for a modern statement of the law:
‘A power of appointment among the ‘relatives’ or the ‘family’ of the testator or of A can be exercised by an appointment to any relation although not within the degree of next-of-kin, if the power authorizes selection.’
The executors urged upon me that the ‘relations cases’ must be regarded as overruled by the Gulbenkiancase [1970] A.C. 508, for the reason that they cannot survive the test thus propounded. If that is so, it is strange that the House of Lords did not describe them as overruled. It could not be asserted that the House of Lords overlooked the ‘relations cases’. In re Sayer [1957] Ch. 423 was referred to in argument, and in the speech of Lord Upjohn. It was in In re Sayer that Upjohn, J. himself said at p.432:
‘Counsel concedes quite properly, on the authorities, that a power to appoint among relatives is good.’
In his speech in the present case Lord Wilberforce expressly endorsed the validity of a discretionary trust for relatives (see p.457) and Lord Reid and Viscount Dilhorne must be taken to have agreed with him.
I therefore find myself led, both by my inclination and by authority, to reject the submission that Clause 9 is void because of the inclusion of “relatives”.
To my mind the reasoning of Brightman J. is irrefutable and so I hold that “my relatives” is a clearly defined class determined by descent from a common ancestor. I venture only one comment on Brightman J's judgment. It is that the words of the Gulbenkian test, which gave rise to the argument namely: “or is not a member of the class”
are not mere surplusage. An attempt was made before Brightman J. to incorrectly apply them, but there could be occasion to correctly apply them as where the definition of the class excluded some who would ordinarily be included in the class. For example to qualify for a gift to “my relatives who are not nationals of country X” would require proof that a claimant was not of the class of persons constituting nationals of country X.
In Re Gibbard (deceased) Public Trustee v. Davis and others [1966] 1. ALL E.R. 273, the will created a collateral testamentary power to appoint the testator's residuary estate: “amongst…any of my old friends.”
The judgment of Plowman, J. in that case is, I think, most instructive. To my mind it adopts as a basic rule applicable to cases of uncertainty the words...
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