Trust

Definition: An equitable obligation, which is binding upon a person (trustee), who must deal
in good conscience with the trust property in favour of any person (beneficiary) who has a
beneficial interest in it.
Features of a trust:
- Creator of the trust:
- Testator for testamentary trust
- Settlor for inter vivos trust
- Trustee: Person who is under an obligation to hold the trust property for the
beneficiaries.
- Beneficiary: Person(s) who are entitled to the enjoyment of the trust property
- Trust property: Rights over the trust property will move from
- Testator/settlor  Trustee  Beneficiary
- Trustee will be personally liable for any loss caused upon the trust property
through his breach of trust.
Private Express Trust
Definition: A trust agreed upon between private individuals.
For a valid creation of a private express trust, three certainties must be satisfied
(Foreman v Hazard):
Certainty of intention
- The settlor/testator must be shown to have intended to create a trust and not merely
a gift.
- A distinction must be drawn between trust and a moral obligation.
- In the absence of clear intention, the Court will look into:
- The language of the will (Construction of the will)
- It is unnecessary, yet advisable to use the word ‘trust’ as it will leave little room
for doubt as to the settlor’s intention.
- Precatory words: ‘confidence’, ‘hope’, ‘belief’, ‘desire’, ‘wishes’, ‘request’ are
normally insufficient as they merely connote a moral obligation.
- Quah Eng Hock v Ang Hooi Kiam: In order for the words to indicate that the
settlor intended to divest such property to the beneficiary, the words must be:
- Clear
- Unequivocal
- Imperative and NOT precatory
- Lord Eldon in Wright v Atkyns: The words must be imperative as
to make it clear that the person holding the property is obliged
to hold it for the benefit of others.
- Re Adams & Kensington: Testator left property through a will “to the absolute
use of his wife, in full confidence that she would do what was right for his
children”. Held: The testator did not show an intention to impose a trust upon
his wife, but merely to leave the property for the wife’s absolute use.

- Comiskey v Bowing-Hanbury: Testator left property to his wife through a will

“in full confidence that she will make such use of it as I should have made
myself and that at her death she will devise it to such one or more of my nieces
as she may think fit and in default of any disposition by her thereof, I hereby
direct that all estate and property acquired by her under my will shall at her
death be equally divided among the surviving said nieces.” Held: The will, when
read as a whole, showed the testator’s intention to give the property to his
nieces the moment the will came into effect, and that upon the death of his
wife, the property would pass to the nieces.

- Dean v Cole: The words in the will read “trusting to her that she will divide in
fair, just and equal shares all such part and portion between my children as she
may think fit.” Held: The trust was invalid as the words “trusting to her” were
an expression of the testator’s confidence in his wife, which does not impose
upon her a binding trust to make an equal division of the property.

- The surrounding circumstances

- Implied conduct of the testator may determine whether a trust was
intended to be created or not.
- James v Lock: A father while in a fit of rage wrote a cheque and thrust
it into his baby’s hand and said “I give this to my baby”. Held: There
was no intention to create a trust as the man was not emotionally
stable at the time.

- A sham or mere façade

- Midland Bank v Wyatt: The defendant set his house on a trust for his wife
and child, but did not inform his family. His business became insolvent and
he owed money to the bank. When the defendant separated from his wife,
his wife’s beneficial interest in the house was not disclosed in the divorce
settlement. Held: The trust was invalid as it was a sham created for the sole
purpose of defeating the defendant’s creditors.
Certainty of subject matter
- A trustee must be able to identify precisely the trust property that he is to hold on
trust.
- In order for the certainty of the subject matter to be determined, the trust property
must be:
- Identifiable and ascertainable
- Sprange v Barnard: The testatrix left her husband £300 through her
will, and “the remaining part of what is left, that he does not want for
his own wants and use to be divided equally between her brother and
sisters.” Held: Reference to ‘the remaining part of what was left’ was
not sufficiently certain, thus the trust was invalid.

- Segregated
- Failure to segregate tangible property renders the trust invalid.
- Intangible property need not be segregated.
- Hunter v Moss: In a contract of employment, the employee was entitled
to 50 out of 950 shares, which had not been transferred or identified.
Held: There was a valid trust as segregation was not required for the
shares.

- Quantified
- Doubts as to the quantum may result in trust failing to satisfy the
certainty of the subject matter.
- Palmer v Simmonds: The testatrix left money to her husband for his use
and benefit, and “the bulk of her residuary estate” to her named
relatives. Held: The word ‘bulk’ means a greater part of the property
which is not sufficiently certain for the purpose of the trust. The use of
that word by the testatrix shows that she has not designated the
property as to which she expresses her confidence, thus no trust had
been created.
Certainty of object
- Whether the beneficiaries who will receive the trust property can be clearly
ascertained.
- There must be somebody, in whose favour the court can decree performance.
- The rules on certainty of objects depend on whether it is a fixed trust or a discretionary
trust.
- Fixed trust
- IRC v Broadway Cottage Trust: There can be no division in equal shares
amongst a class of persons unless all the members of that class are
known.
- It is necessary for the trustees to be able to compile a complete
list of beneficiaries.
- A trustee is under an obligation to distribute the property to named
persons according to the portion to which each beneficiary will receive
as specified by the trust.
- Halsbury’s Laws of Malaysia: If a trust requires division between all
members of a class, it will be void for uncertainty if it is not possible to
provide a complete list of the beneficiaries.

- Discretionary trust
- The trustee is provided with the discretion to determine with certainty
whether a person is or is not within the description of the relevant class
stated by the testator.
- If the class is insufficiently defined by the testator, the trust
should fail for uncertainty.
- Re Barlow: The testatrix left some pictures to be held by the executor
on trust for sale at a low price to any of her family or friends. Held:
Anyone coming forward to exercise the option has to prove that he is
a friend, but it is not legally necessary to discover who all the friends
are. In deciding whether the individual is entitled to purchase the
painting, the executor has the discretion to decide whether the person
has proved that he is a friend.

- Re Gulbenkien: A will was created to provide bequests for “any persons

and his remoter issue… and any person in who house or apartment or
in whose company or under whose care or control…” Held: There was
certainty of object as long as the beneficiary who comes forward falls
under any one of the headings.
- TEST: The trustee must be able to say with certainty that an
individual is or is not a member of that class of beneficiaries.
- A trustee has a duty to select the beneficiaries of the trust
property from among the class designated by the testator.
 - McPhail v Doulton: The trust deed provided that the trustee shall apply
in their absolute discretion the relevant fund to “any of the officers and
employees or ex-officers and ex-employees of the company, and any
relatives or dependants of any such persons in such amounts…” as the
trustee thought fit. Held: The test in Re Gulbenkien was applied, and it
was held that the term ‘relative’ could be certain if it were interpreted
to mean ‘descendants of a common ancestor’, hence, the trust was
valid for certainty of object.

- Issues in determining certainty of objects:

- Conceptual uncertainty: Where the testator has used words which are too
vague as to be incapable of effect.
- E.g: ‘Trusts for my friends’ is conceptually uncertain as the term
‘friends’ vary from one person to another.
- Re Tuck’s Settlement: Conceptually uncertain terms may not defeat the
trust if the testator has given the trustee discretion to decide who falls
within the class.

- Administrative workability: Where the nature of the trust is such that it is

impracticable for the trustees to carry out the settlor’s wishes.
- An administratively workable trust would be invalid.
- R v District Auditors: A trust was to have the effect of including a class
of beneficiaries of 2.5 million people. Held: The broad geographical
region and the large body of beneficiaries caused the trust to be
administratively unworkable, thus rendering it void.
- The group of class of beneficiaries was too large that it would
be impossible for the trustees to perform their obligations.
Secret Trust
Definition: An arrangement of trust made in confidence between the testator and the trustee.
- A secret trust arises when a testator wishes to benefit a person who cannot be named
in the will; hence, the testator will ask a trustee to agree to a secret arrangement
where the trustee will receive property under the will, which is in fact for the secret
beneficiary.
- Secret trusts exist outside the will of the testator, are not testamentary, and are not
bound by the Wills Act 1959.
- Equity enforces the testator’s true intentions despite it being contrary to the
provisions of the Wills Act (requirements under Sec. 9).
- This helps prevent the trustee from attempting to keep the property under the
secret arrangement to himself.
- Secret trusts may be made orally or in writing.
- It aims at keeping the identity of the beneficiaries a secret.
Fully Secret Trust
- Nothing is disclosed on the face of the will: there is no mention of the beneficiary or
the terms of the trust.
- There is no indication of a trust.
- Only the giving of property to the trustee is mentioned without any reason.
- E.g: RM100,000 to X.
Half Secret Trust
- A trust is indicated in the will, but the terms of the trust are not stated.
- The testator must have communicated the terms of the trust to the trustee in a
separate document.
- E.g: RM100,000 to X upon trust for a purpose communicated to him earlier.
Viscount Summer in Blackwell v Blackwell: The necessary elements of a valid secret trust
which must be proven by a plaintiff are:
- The intention of the testator to subject the trustee to an obligation in favour of the
beneficiary
- Certainty of intention must exist as in a Private Express Trust
- A binding obligation must be intended.
- Re Snowden: The deceased left property to her brother and said “he shall know
what to do.” Her brother died shortly after his sister, niece and nephew
contended that there was a secret trust in existence. Held: The words were
insufficient to give a clear indication of intention to set up a trust. There was
no legal obligation imposed upon him, but merely a moral obligation.
- Communication of such intention and the terms of the trust to the trustee
- Fully Secret Trust: Communication may take place before or after the drawing
of the will, as long as it is before the testator’s death. (Re Boyes)
- Half Secret Trust: Communication must take place before or at the time of
drawing of the will. (Re Keen)

- Re Boyes: The testator told the trustee that he was to hold property on secret
trust, the terms of which will be communicated after the testator’s death.
Held: When the documents communicating the terms of the trust surfaced,
the testator had died. Thus, his intention had not been communicated to the
trustee.

- Re Keen: Upon execution of a will for £10000 to be held upon trust, the testator
informed one of the trustees that he wished to provide for a person whose
name was to be kept a secret and that he had written the name on a letter in
a sealed envelope, only to be opened by the trustee after the testator’s death.
Held: There was a valid secret trust as constructive communication of the
terms of the trust at the time the will is drawn is considered positive
communication by the testator.
- It is sufficient if the existence of the terms was made known to the
trustee.
- Communication of the terms may be made orally, through a letter or
sealed envelope as long as it is given to the trustee before the testator’s
death.

- The extent of the trust must be communicated to the trustees.

- Re Cooper: The testator communicated his intention to create a secret
trust over a fund of £5000 in his will to two trustees. He then increased
the amount to £10000, but failed to inform his trustees. Held: Where
the trustees had not been informed of the amount added to the trust,
the addition cannot be held as part of the secret trust, but instead
forms a part of the testator’s residuary estate.

- Where there are multiple trustees, it is not necessary for all the trustees to be
informed of the secret arrangement.
- Blackwell v Blackwell: The testator drew a half secret trust in his will to
which there were four trustees. One trustee wrote a memo setting out
the testator’s intentions to leave money to his mistress and kids. The
testator’s widow claimed that the trust was void due to lack of
communication to all the trustees. Held: There was a valid secret trust
as it is sufficient for at least one trustee to be given all the details.
 - Acceptance of that obligation by the trustee either expressly or impliedly
- To prevent the trustee from committing fraud, it is important that the trustee
has accepted the obligation imposed upon him.
- Wallgrave v Tebbs: The testator left money to which the trustees were
supposed to hold in trust, however the secret trust failed as the trustees knew
nothing of the testator’s intention until after his death.
- Dicta of Wood VC: As long as the testator’s intention has been
communicated to the trustee, acceptance of such obligation may be
made through an express promise or implied silence that he will carry
out the testator’s intention.

- Ottaway v Norman: The testator, in the presence of his wife, told his son that
he had made a will leaving the house to his wife, but that after her death she
should leave it to the son. The wife had agreed, but after the testator’s death,
she drew a will leaving the house to her friend. Held: There was a valid secret
trust to which the wife had accepted through her conduct. Thus, it was her
duty to speak up if she did not wish to be bound by the trust.

Fully Secret Trust: If a trustee dies before the testator, the secret trust dies with him, thus
causing the secret trust to no longer be valid.
Half Secret Trust: When a trustee dies before the testator, as the existence of a trust has been
made known, the testator or his executor must appoint a new trustee. The elements of
communication and acceptance must then be fulfilled again in order for the secret trust to be
valid.
- Where there is proof indicating that a trust exists, a new trustee must be appointed.
‘Dehors the will’ theory:
- Sec. 15, Wills Act: A beneficiary cannot be a witness to a will
- The theory, which operates outside the Wills Act, provides that a person who
witnessed a will may benefit under a secret trust.
- Re Young: Where the testatrix informed her husband before drawing the will that
$25,000 was to be given to the housekeeper who was then a witness to the will, the
secret trust was held to be valid.
Charitable Trust
The Preamble to the Statute of Elizabeth 1601 sets out a number of categories of activity
considered to be charitable:
“The relief of aged, impotent and poor people, the maintenance of schools of learning,
free schools and schools in universities, the repair of churches, the education of
orphans…”
The Statute of Elizabeth was then repealed by the Charities Act 2006.
Charities Act 2006: A ‘charity’ is defined as an ‘institution’, which can be a trust or a company
under English law, ‘which is established for charitable purposes only.’
- Sec. 2(2): Charitable purposes are the prevention of poverty, advancement of
education, advancement of religion, health, environment…and any other purpose.”
This is based on Pemsel v Income Tax Special Purpose Commissioners, which sets out the four
categories of charity recognized by the law of charities today:

- Relief of poverty
- Advancement of education
- Advancement of religion
- Other purposes beneficial to the community
In order to determine whether a trust constitutes a charity which falls under one of the four
categories, it must first be determined whether its purpose falls under a ‘charitable purpose’.
Elements to be fulfilled:
- The trust must be beneficial to the community
- The trust must be intended wholly and exclusively for charitable purpose
- Houston v Burns: Where the settlor declared that the property was for
“charitable or other purposes”, the court held that it was not a valid charitable
trust as the settlor failed to indicate whether “other purposes” was for charity
or not.
- There can be no personal nexus between the testator and the beneficiaries
- The relationship with the intended beneficiaries must be impersonal.
Relief of poverty:
- Poverty as defined in Re Coulthurst: Poverty means something more than simply
‘going short’, but does not require absolute destitution.
- Mary Clark Homes v Anderson: A person is said to be poor if he is in genuinely
straitened circumstances and is unable to maintain a modest standard of living for
himself and those dependent upon him.
- Where a person is unable to afford necessities for personal living.
 - It is unnecessary for trusts for the relief of poverty to benefit a large section of the
community. Rather, they are presumed to have a generally altruistic motivation and
are, therefore, enforceable as being charitable.
- Trusts for the relief of poverty do not cease to be charitable merely because
they are not beneficial to a sufficient section of the public; as long as it goes
beyond the relief of the poverty of a single, individual beneficiary.

- The personal nexus rule is not a requirement under this category as the trust is created
for any poor persons, which means that personal nexus between the testator and
beneficiaries may exist.
- Re Segelman: A gift for the relief of poverty does not become any less
charitable just because the beneficiaries are confined to a particular class
limited by ties of blood or employment.
- Re Scarisbrick: The testatrix left property to be held on trust “for such relations
of my son and daughters” who are living under needy circumstances.
- Dingle v Turner: A valid trust was created with an instruction to apply the
income in paying pensions to the poor employees of E Dingle & Co Ltd.
- The class was identified through a personal nexus, as the beneficiaries
were all employees of the same company.

- Re Sanders’ Will Trusts: A trust created for the “working classes” failed as a charity as
it does not satisfy the legal requirement of poverty.
- However, in Re Niyazi: A gift of £15000 for the construction of a “working men’s
hostel” in Cyprus was a valid charity as it was a sufficiently small amount as to not
encourage the construction of any grandiose building in an area of extreme poverty
and since the class of persons could be described as impoverished.

- Thus, in situations where there may be a possibility of both rich and poor persons to
benefit from the trust, it is necessary to look at:
- The class of beneficiaries (e.g: employees or working class)
- The manner in which the money is to be used

- Re Gwyon: A trust to provide clothing for boys aged 10-15 was held to be invalid as
there was no necessary requirement for the boys in question to be in poverty. Instead,
the court accepted that the money would be applied by the trustees for the benefit of
poor boys only.
Advancement of education:
- Educational purposes as defined in Perpetual Trustee v Groth: Educational purposes
extend beyond the advancement of education in general or the propagation of the
whole body of human knowledge, and trusts for the advancement of education or
propagation of knowledge in a certain field has been upheld.
- ‘Educational purposes’ are not confined to teaching activities in classrooms.
- It is a requirement that there must be a sufficient public benefit and that there can
be no personal nexus between the beneficiaries and the testator.
- As long as there is a genuine charitable intention to benefit the public as a
whole, the trust may be held valid.
- Oppenheim v Tobacco Securities Trust: The income to a trust fund was to be
applied for the education of the children of British-American Tobacco Co.’s
employees, ex-employees, any of its subsidiaries or potential beneficiaries.
Held: The trust was invalid because of the nexus between the beneficiaries and
the settlor.
- Common employment does not form a section of the community.
- The quality which distinguishes them from other members of the public
must be a quality which does not depend on their relationship with the
settlor or testator.

- Research:
- McGovern v AG: A trust for the advancement of education in research will be
charitable if
- The subject matter is a useful object of study
- It is contemplated that the knowledge acquired from the research will
be disseminated to others
- The trust is for the benefit of the public or a sufficiently important
section of the public

- Re Shaw: A trust was created leaving money to be applied towards research to

create new alphabets for the translation of Shaw’s work, “Androcles & the
Lions”, in hope that it would lead to the creation of a new common language
in line with his humanist philosophy. Held: The trust was invalid as it was only
for the mere increase of knowledge with the existence of the testator’s own
propaganda. It was not charitable as it was not for the purpose of teaching and
education.

- Incorporated Council for Law Reporting v AG: The publication of law reports
was held to be a valid charity as they are essential in the study of law, making
it educational and beneficial to the community. Further, lawyers and law
students using the law reports are considered to be a sufficiently important
section of the public.

- Artistic education:
- Royal Choral Society v IRC: Education should not be narrowly defined when it
comes to aesthetic education. Whether or not the promotion of artistic
education is charitable must be looked at from the facts of each case.
- A trust for the establishment of a choir was held to be charitable.
- Re Pinion: The testator left his studio and collection of furniture and paintings
for his trustees to open the studio as a museum to display his collection.
 Held: The trust was not charitable as all the expert witnesses were of the
opinion that the objects were of no artistic merit, but rather a mass of junk,
thus not reflecting artistic education for the benefit of the public.
Advancement of religion:
- Sec. 2(3), Charities Act: A religious purpose involves a belief in God, more than one
God or no belief in God, and includes the maintenance of religious buildings.

- Trusts for the advancement of religion are required to have a sufficient public benefit.
- Gilmour v Coats: A trust for the benefit of a convent which housed cloistered
nuns who were involved in no external work and were devoted to prayers was
held to be non-charitable.
- The benefit of the prayers of nuns to the public is insufficient to validate
a charitable trust for the purpose of advancement of religion.

- AG v Thirpooree Soonderee: A gift of land by the settlor for the benefit of a Hindu
temple was held to be charitable, whereas a gift of $200 to a named idol in the temple
was not charitable.
- AG v Lim Poh Neo: A gift of a burial ground to members of a clan is charitable.
- Re Alsagoff Trusts: A trust for the maintenance of mats and air zam zam for the benefit
of visitors to the mosque in Mekah is charitable.
Other purposes beneficial to the community:
- Re South Place Ethical Society: Just because a purpose is beneficial to the community,
it does not necessarily mean that it is charitable.
- It must be considered in each case whether a trust provides a sufficient public
benefit.

- IRC v Baddeley: The settlor purported to create a charitable trust to provide facilities
for religious services and instruction and for the social and physical training and
recreation of Methodists in West Ham and Leyton of east London.Held: The trust
would fail as the class of those who could benefit was too narrowly drawn. The
beneficiaries must be an appreciably important class of the community.

- Re Moss: A trust for a person’s work in the welfare of cats and kittens needing care
and attention is valid as it promotes kindness and eradicates animal cruelty.
- Re Douglas: A trust for the home of lost dogs to not restrict access to the public to
view the animals was valid as the community would indirectly be benefited.
When a charitable trust fails, in order to make it valid, it may be channelled through a private
express trust.
Cypres doctrine:
- The doctrine aims at ensuring that the charitable trust will not fail.
- A charitable trust which, at the initial stage, proves to be impossible and impracticable,
will not fail if the court can apply the property to some other charitable purposes as
nearly as possible to the one originally intended.
- Charities Act: As long as the trust is inconvenient or unsuitable, the doctrine
may be applied.
- The courts have an inherent jurisdiction to remove parts of the trust which has
caused it to become impossible and impracticable.

- Where the charitable trust is impossible ab initio, the doctrine cannot be applied
unless the testator or settlor has shown a general charitable intention.
- Biscoe v Jackson: The settlor wanted to create a soup kitchen and a cottage
hospital in Shoreditch, but the intended land could not be acquired. Thus, the
doctrine could be applied as the settlor had shown a general charitable
intention.
- Re Harwood: Where the settlor had prepared a long list of possible charities
without demonstrating a clear intention as to benefit any particular charity,
the doctrine may apply and the court may exercise their discretion in choosing
a charity.

Advantages of a Charitable Trust:

- Exempt from the perpetuity rule
- A charitable trust is excluded from the rule of law against establishing a trust
that lasts forever, which the trust property never vests upon the beneficiary.
- Cypres doctrine
- If, on a strict interpretation of its terms, the charitable trust appears
impracticable or impossible, a court may apply the cypress doctrine to amend
the trust and give it effect as close as possible to the intention of the settlor or
testator.
- Tax benefits
- Creating a charitable trust will allow the settlor to be exempted from paying
tax.
- Income Tax Act 1967, Schedule 6, paragraph 13: The income of a religious
institution not operated or conducted primarily for profit and which is
established exclusively for the purposes of religious worship or advancement
of religion is exempted from income tax.
Resulting Trust
- Created when property is not properly disposed of.
- The beneficial interest is said to ‘result’ back to the transferor of the property.
Megarry J in Re Vandervell’s Trusts: Resulting trusts may be divided into
Automatic resulting trust
- When there is failure of an express trust:
- Trustee holds the trust property on a resulting trust for the settlor or testator,
to whom the property will revert back to.
- Circumstances in which it may arise:
- When there is failure to satisfy any of the certainties:
- When the beneficiary dies before the settlor or testator
- When the settlor fails to dispose the whole of the beneficial interests
- When all the trust property has not been exhausted, thus creating a surplus
fund.
- Re Gillingham Bus Disaster Fund: A fund was established for the victims
of a terrible bus crash. A sum of £9000 was raised, but only £2,500 was
used.
Held: Where money is held upon trust and the trusts declared do not
exhaust the fund, hence creating a surplus, it will revert back to the
settlor under a resulting trust, even if the settlor intended for the fund
to be exhausted.
Presumed resulting trust
- Where contributions have been made to the purchase of property, but the contributor
has not been a legal title equivalent to the contribution, there is a presumed intention
that the contributor intended for his property to be held on a resulting trust.
- E.g: Where A gives RM50,000 to B to purchase a house, and B purchases the house
and registers it in his name, there is a presumption that B holds the house on a
resulting trust for A.
- The presumption can be rebutted in two ways:
- Through evidence proving that the property was to be given as a gift
- Through the presumption of advancement
- There are certain relationships from which equity infers that any
benefit provided for one party at the cost of the other has been
provided by way of ‘advancement’.
- E.g: Husband to wife; parent to child.
- March v March: The presumption does not arise in transfers from wife
to husband as it is a moral obligation of the husband to provide for his
wife and children. Thus, in such circumstances, the husband is said to
hold the property on a resulting trust for his wife.
Non-charitable Purpose Trust
General rule: A non-charitable purpose trust is void as there will be no beneficiary to enforce
it.
- Privy Council in Leahy v AG for New South Wales: A gift can be made to persons, but it
cannot be made to a purpose or to an object.
- Morice v Bishop of Durham: Under the beneficiary principle, there must be somebody
in whose favour the court can decree performance.
However, common law has provided exceptions to the general rule.
Elements to be fulfilled for a non-charitable purpose trust to be valid:
- There can be no human beneficiary
- The trust is not for a charitable purpose
- The trust must be for the fulfilment of a certain purpose
Maintenance of tombs and monuments:

- A gift intended for tombs and monuments may be a valid non-charitable trust if it is
restricted within the perpetuity period and the amount is modest.
- The perpetuity period for the maintenance of tombs and monuments is 21
years.
- Re Hooper: A gift of £1000 that was left to trustees for the care and upkeep of certain
family graves and monuments was held to be valid for a period of 21 years.
Maintenance of specific animals:
- Pettingall v Pettingall: A gift of £50 per annum to maintain the testator’s favourite
black mare was valid.
- Re Dean: An annuity of £750 for the upkeep of the testator’s horses and hounds for a
period of 50 years was held to be valid.
Marriage Settlements
Definition: A conveyance of property for the benefit of parties to the marriage and issues of
the marriage by way of a trust and deed.
Goff J in Re Densham: For a marriage settlement to be valid
- It must be made before or in contemplation of marriage
- It may be made after the marriage but must be pursuant to an ante-nuptial agreement
- It must be conditioned only to take effect upon the marriage taking place
- It must be made for the purpose of encouraging or facilitating the marriage
A marriage settlement may only be enforced by those persons who are within the marriage
consideration. It would generally comprise of:
- Parties to the marriage (husband and wife)
- Issues of the marriage
- Remote issues

Next of kin may be included, but are not able to enforce the settlement as they are not within
the marriage consideration.
- Pullan v Koe: A marriage settlement contained an agreement by a wife to settle certain
acquired property on the trusts of the settlement. Some of the property was invested
in bonds under her husband’s name and had not been settled. Held: Upon the
husband’s death, the moment the wife received the property; it was subject to a trust
enforceable in favour of her and their nine children from the marriage, as these were
within the marriage consideration.