IRC v Broadway Cottages [1955] Ch 20

Key point

  • This case formulated a ‘complete list test’ which states that discretionary trusts are valid only if it is possible to ascertain the identity of every single member of the class (i.e. to make a complete list) of potential beneficiaries
  • Note that the application of the ‘complete list test’ to discretionary trusts was overruled in McPhail v Doulton (Re Baden (No. 1)) [1971] AC 424

Facts

  • The settlor settled a sum of £80,000 upon trust
  • The trust directed the trustees to apply the income of the trust fund to persons who were employed by himself or his family during a certain period of time
  • The trustees had free discretion to select which members of this class of beneficiaries to distribute to

Issue

  • Was a valid trust created?

Held (Court of Appeal)

  • The trust was void for uncertainty

Jenkins LJ

  • The principle stated by Lord Eldon in Morice v Bishop of Durham (1804) 9 Ves 399; (1805) 10 Ves 522 is that ‘in order to be valid a trust must be one which the Court can control and execute’.
  • ‘if the class of beneficiaries was an ascertainable class, it would or might be possible to imply a trust in default of distribution by the Trustees for all the members of the class in equal shares, and that would be a trust which the Court could control and execute. But as the class is un-ascertainable, no such trust can be implied.’
  • In the present case, since the class of beneficiaries was not ascertainable, no such trust can be implied and the trust cannot be executed by the court

Commentary

  • The assumption that Jenkins LJ is making in his reasoning is that the court can only enforce a discretionary trust by ordering distribution in equal shares, but this was later rejected by Lord Wilberforce in McPhail v Doulton (Re Baden (No. 1)) [1971] AC 424