1.a)Ben Dodd has just died. A provision in his will states: “I leave £10,000 to the inhabitants of the village of Knotty Elms. This money is to be used to erect a gold statue of myself in order that future generations of inhabitants and visitors will remember my good work.” Advise the executors of Ben Dodd’s estate. (5 marks)

Introduction

Although a person is free to make a trust of his property, there are certain limitations on his power to make this trust. Trust must not be made for a purpose that is capricious, against public policy and extravagant or wasteful. This has been laid down in many cases involving the construction of memorials in trust deeds. The present case also deals with the issue of a memorial construction.

Advice for Ben Dodd’s Executors

Constitution of a trust requires two conditions to be fulfilled- the first is the declaration and the second is the actual constitution of the trust. For the purpose of declaration, there are ‘three certainties’ that must be followed. These are: the certainty of intention, subject matter and object. Certainty of intention is satisfied by the manner in which the trust is expressed. If the expression of the trust can be clearly deduced, this is a valid expression of intention. For the constitution of a trust, there must be a beneficiary. This is called as the ‘beneficiary principle’. The beneficiary must be ascertained or ascertainable. The settlor must therefore settle the property on trust for the benefit of an individual or individuals. The trust property may also be left for the benefit of a legal person like a company. The basic requirement here is that the trustees should be able to identify the person or persons for whose benefit the trust has to be administered.

Where the trust property is left for a purpose but the persons to be benefitted by the trust are not ascertainable or there are no beneficiaries, the trust is not constituted properly and is PAGE 18 considered void. This principle can be explained with the help of the case, Re Astor’s Settlement Trusts.¹ The trust was purported to be made of shares to be held for a number of purposes, including, ‘preservation of independence and integrity of newspapers’. This trust was held to be void by the court.² The basic and most fundamental principle as the court considered was that there must be some human or legal beneficiary who could take the executors to the court if the conditions of the trust were not implemented. If there is no such beneficiary who has the locus standi to take the executors to the court, then there cannot be a valid trust.

Earlier, the court in Bowman v Secular Society Ltd.,³ had noted that “ A trust to be valid must be for the benefit of individuals…or must be in the class of gifts for the benefit of the public which the courts in this country recognise as charitable in the legal as opposed to the popular sense of the term.”

As Ben Dodd has expressly stated in his will, “I leave £10,000 to the inhabitants of the village of Knotty Elms,” this is a public trust as the beneficiary of the trust is the public, that is, the inhabitants of the village. However, in public trusts there must be some charitable purpose for which the trust is being made. Moreover, trust must not be contrary to public policy. Where the purpose of establishing a trust is wasteful, or of no real benefit to anyone, the purpose is considered to be contrary to public policy. A capricious purpose is also against public policy.

In cases where the trust property is to be used for the installation of memorials to a person or to his family, there must be some public benefit behind the installation for the memorial.Where a person whose memorial is to be made is a person of historical significance to the locality or to the nation, this will be considered to be for public benefit.⁴

In Aitken’s Trs v Aitken,⁵ it was considered that the memorial that is to be erected in a public place should not be one that is open to ridicule, but one that fills the public of the place with pride. If for example, some monument is erected to honour an obscure tradesman who holds no place of especial pride in the public space, this will be contrary to public policy. The other important point here is the extravagance or wastefulness behind erecting a gold statue. In McCraig’s Trs v Kirk Session of the United Free Church of Lismore,⁶ the court held that extravagance and wastefulness for the satisfaction of the testator’s vanity was contrary to public policy. In this case, Ben Dodd wanted a gold statue be made and erected and has left a big sum of £10,000 for that purpose. This does not really benefit the villagers but rather just goes on to the satisfaction of Ben Dodd’s vanity. Therefore, this trust is extravagant and capricious.

There is also a problem with this trust because it is seemingly for perpetuity as some of the villagers (who wont be born for more than a hundred years) will not benefit from the trust for another century. Therefore, the trust will be invalid for that reason as well. Lastly, the list of beneficiaries for this trust is too wide and it will make the trust administratively unworkable. In the case of R v District Auditor, ex parte West Yorkshire Metropolitan County Council,⁷ this principle was laid down by the court and the court refused to allow a trust with a wide class of beneficiaries. The reasoning behind this principle is that the executors of the trust should be administratively enabled to execute the terms of the trust in favour of the beneficiaries. When the class of beneficiaries is too wide, it becomes impossible to administer the trust.

Conclusion

In this case, Ben Dodd’s trust deed is bound to fail because the purpose of the trust is extravagant and contrary to public policy. In light of decided case law on the erection of statues and memorials, the established principle is that the person whose statue is to be constructed must be someone who holds a special place of pride for the inhabitants of the place or in a national sense. In this case, this is not so. Therefore, the executors of Ben Dodd’s estate can contest the trust deed and have it declared as void.