Miss Helen Alice Dorothy Barlow, the testatrix had a large collection of pictures.
For the remainder, she declared them to be held by her executor on trust to sell them, but that her ‘family and friends’ could buy them first at 1970 valuations or at the probate value, whichever was lower.
Browne-Wilkinson J held that the trust was valid, because both concepts of friends and family could be given a workable meaning.
[1] The word ‘family’ could be construed as any ‘blood relation’, and the only reason in other cases to restrict the concept to statutory next of kin had been to save gifts from failing for uncertainty.
[2] The main questions which arise for my decision are (a) whether the direction to allow members of the family and friends to purchase the pictures is void for uncertainty since the meaning of the word “friends” is too vague to be given legal effect; and (b) what persons are to be treated as being members of the testatrix's family.
They say that since the testatrix intended all her friends to have the opportunity to acquire a picture, it is necessary to be able to ascertain with certainty all the members of that class.
The distinction between the Gulbenkian test and the In re Allen test is, in my judgment, well exemplified by the word “friends.” The word has a great range of meanings; indeed, its exact meaning probably varies slightly from person to person.
But such reasoning has no application to a case where there is a condition or description attached to one or more individual gifts; in such cases, uncertainty as to some other persons who may have been intended to take does not in any way affect the quantum of the gift to persons who undoubtedly possess the qualification.
Although it is obviously desirable as a practical matter that steps should be taken to inform those entitled to the options of their rights, it is common ground that there is no legal necessity to do so.
I therefore hold that the disposition does not fail for uncertainty, but that anyone who can prove that by any reasonable test he or she must have been a friend of the testatrix is entitled to exercise the option.
Without seeking to lay down any exhaustive definition of such test, it may be helpful if I indicate certain minimum requirements: (a) the relationship must have been a long-standing one.
If in any case the executors entertain any real doubt whether an applicant qualifies, they can apply to the court to decide the issue.
53, 56–57, Megarry J. stated, at p. 57: “If there is a trust for ‘my old friends,’ all concerned are faced with uncertainty as to the concept or idea enshrined in those words.
Where the concept is certain, then mere difficulty in tracing and discovering those who are entitled normally does not invalidate the gift.”The extract that I have read itself shows that Megarry J. was considering a trust for “my old friends” (which required the whole class to be ascertained) and not such a case as I have to deal with.
30, 46–47, where he describes this need for limiting the class to next of kin as “justification for imputing a wholly conventional and artificial intention to the testator.” In the case of a gift to “my relations in equal shares,” such an artificial construction is necessary to save the gift from failing for uncertainty.
There being, therefore, no reason to give the words in this will an artificially limited meaning, I decline to do so.
There being no need so to construe the clause in order to validate it, I hold that the word has its ordinary meaning and includes all persons related by blood to the testatrix.