The first provision, specifically that the trustees may allow any member of Hannah’s family or her friends to take one dress as a keepsake is a gift with a condition precedent, the condition precedent being that the individual wanting to take an item is a family member or friend. As the clause includes ‘may’ it will not be held to be a trust as certainty of intention cannot be objectively determined . It has been established in Re Barlow’s Will Trust that a condition precedent will not render a gift void for uncertainty if at least one person can be …show more content…
He takes an extremely literal approach to the test in McPhail v Doulton and states that it must be possible to say whether any given individual is or is not within the class . He rejected the concept of ‘descending from a common ancestor’ and instead argued that a definition of ‘next-of-kin’ was necessary to deem the term relative conceptually certain. Stamp LJ appears to dispute the liberal implications of McPhail v Doulton , applying his approach would leave very little distinction between the test in Mcphail v Doulton and the list test . Arguably, this is the least conceivable approach as Lord Wilberforce states a trust ‘does not fail simply because it is impossible to ascertain every member of the class’ . It is therefore unlikely that this case be followed in the …show more content…
However, the second part of the provision is problematic regarding certainty of subject matter. Assuming both Janice and Kayleigh choose a property, there shall be no problem and it is therefore advisable that they do so immediately following Igor’s death. However, if that becomes impossible, perhaps due to Janice or Kayleigh predeceasing Igor, the trust will be void as, for example, if Janice dies before choosing it will not be certain which property she would have chosen and therefore which would belong to either Kayleigh or Lucian. This was demonstrated in the case of Boyce v Boyce where the testator left freehold houses on trust to his wife during her lifetime and thereafter to his daughters Maria and Charlotte, proving that Maria chose first and Charlotte receive the other. Maria predeceased her mother and therefore made no choice, as it was uncertain which house Charlotte was entitled to the trust failed. Both Hannah’s case and the case of Boyce v Boyce demonstrate a subsequent failure of a trust inducing an automatic resulting case. It can be seen in Re the Trusts of the Abbot Fund that were a trust subsequently fails due to uncertainty of object, the property is held on an automatic resulting trust. As Igor had a lifetime interest the property will be held on an automatic resulting trust and form part of his