Re Snowden, decd
| Jurisdiction | England & Wales |
| Judgment Date | 1979 |
| Year | 1979 |
| Date | 1979 |
| Court | Chancery Division |
Trusts - Secret trust - Standard of proof - Absolute gift to testatrix's brother - Last wishes of testatrix told to brother - Death of brother - No issue of fraud - Whether secret trust or moral obligation
The testatrix, aged 86, who was widowed and childless, had lived with her brother for some six months before she died on January 16, 1974. By her will dated January 10, 1974, she gave the residue of her estate to her two executors and trustees to hold for her brother absolutely. The brother died six days after the testatrix, on January 22, 1974, having by his will made his son, the first defendant, his executor and sole residuary beneficiary. That nephew was the only one of the whole blood; there were three nieces and 13 great nephews and nieces of the half blood.
The will of the testatrix was made in the following circumstances. First, an attendance note of August 30, 1973, by S, her solicitor and executor, recorded that she was not clear how best to deal with things but thought the easiest way was to leave legacies to nephews and nieces “leaving it to [her brother] to split up the remainder as he thought best.” Second, on the morning of January 10, 1974, her brother, after speaking to the testatrix, gave S instructions over the telephone which appeared to have been carried out in the will as drafted. The brother further said that as S knew “she wants me [her brother] to deal with the final division for her.” Third, on the afternoon of January 10, 1974, the will was executed in the presence of two witnesses. S was unable to be present.
The evidence of those circumstances was the attendance note of S dated August 30, 1973, a statement by S made in February 1974 amplifying that note, and affidavits of the two witnesses to the will, sworn in November 1977 and December 1977 respectively, in which they detailed the steps they took to ensure that the testatrix understood and approved the terms of the will. She was asked whether she wanted the bulk of her estate to go to her brother instead of to a niece and she said “yes.” The statement by S of February 1974 recorded that she had wanted “to be fair to everyone,” dwelling on what her brother had done for her and wanting the residue to be left to her brother to “look after the division for her,”
On a summons by S to determine whether the estate of the testatrix was held on trust for the brother's son absolutely or for one or others of the defendants mentioned in the summons the question arose whether the gift of residue to the brother was subject to a secret trust: —
Held, (1) that in order to establish a secret trust where no question of fraud arose the standard of proof was no more than the ordinary civil standard of proof required for the establishment of an ordinary trust (post, p. 661H).
(2) That there was insufficient evidence to show that the testatrix intended to bind her brother by any legally enforceable trust as to the disposition of residue, and that there was no more than a moral obligation imposed on him to distribute it as she herself might have done; accordingly he took the residue free from any secret trust (post, p. 663G–H).
The following cases are referred to in the judgment:
Blackwell v. Blackwell [
Crane v. Hegeman-Harris Co. Inc. [
Fowler v. Fowler (
Hornal v. Neuberger Products Ltd. [
Jones v. Badley (
Joscelyne v. Nissen [
M'Cormick v. Grogan (
Mussoorie Bank Ltd. v. Raynor (
Ottaway v. Norman [
Pitt Rivers, In re, [
Shelburne (Countess of) v. Earl of Inchiquin (
No other cases were cited in argument other than Ottaway v. Norman [
ORIGINATING SUMMONS
By her will dated January 10, 1974, the testatrix, Ethel Maud Snowden, who was childless, appointed her nephew, the first defendant, Alan Duncan Spowage, and her solicitor, the plaintiff, Reginald Ian Atkins Smith, to be her executors and trustees. The first defendant was also an executor of and sole beneficiary under the will of his father, the testatrix's brother. The second defendant, Vernon Sydney Read, was an executor of and a beneficiary under the will of the testatrix's sister. The third defendant, Jane Alice Pile, was the other executor of the will of the testatrix's sister. There were 17 other defendants to the summons, among them nephews, nieces, great nephews and great nieces, either of the whole or the half blood.
The testatrix died six days after the execution of her will and her brother to whom she left the residue of her estate on trust absolutely died six days later. The gross value of her own estate was some £75,000 and that of her brother some £105,000.
By paragraph (1) of the summons dated October 10, 1977, the plaintiff sought the determination of the question whether, in the events that had happened, the residuary estate of the testatrix was held (a) on trust for the first defendant absolutely; or (b) on trust as to one half for the first defendant absolutely and as to the other half for the second and third defendants, to be held by them on the trusts of the will of the testatrix's sister; or on trust for some or other of the defendants as specified in clauses (c) to (i) of paragraph (1).
The facts are fully stated in the judgment.
J. H. Weeks for the plaintiff.
The 20 defendants did not appear and were not represented.
November 22. SIR ROBERT MEGARRY V.-C. read the following judgment. This originating summons raises a question of the standard of evidence that is required to establish a secret trust, and this is a subject which has its difficulties. The testatrix, Mrs. Snowden, made her last will on January 10, 1974, and died six days later. The will appointed two executors and trustees, made a specific bequest of some shares, gave 11 pecuniary legacies of sums ranging from £500 to £8,000, and then gave the residue to the executors and trustees on trust for sale, and to hold the unconverted property and the proceeds of sale on trust to pay the funeral and testamentary expenses and death duties, and then “to stand possessed of the residue upon trust for my brother Albert Ernest Spowage absolutely.” Her brother, whom she called “Bert,” was in fact suffering from terminal cancer, and he survived her for only six days. In round figures, the gross value of the testatrix's estate was rather over £75,000, and the net residue was nearly £20,000. Her brother's gross estate was worth rather over £105,000. The question before me is whether the brother took the residue subject to a secret trust and, if so, what were the terms of that trust. If he took free from any trust, then the first defendant, who is his only child and his executor and sole residuary beneficiary, is entitled to the residue in dispute.
The testatrix was born in 1887, and was a little over 86 years old when she made her will, her brother was about a year-and-a-half her senior. The testatrix had been widowed over three years before she made her will. She was childless, and after living on her own in her house at Seaford, she had come to live with her brother in Nottingham rather over six months before she died. Under an earlier will that she made in 1971 she had left her residue to a niece: but she came to resent the lack of attention that she thought the niece had paid her, and so in July 1973, after she had gone to live with her brother in Nottingham, she asked her solicitors for her will as she intended to alter it, and not to leave her residue to this niece. The solicitors, a Nottingham firm, then sent her the will; and it was later arranged that Mr. R. I. A. Smith, a partner in the firm of solicitors, would call to see the testatrix on August 30, 1973.
I pause there. Virtually the whole of the evidence about whether or not there was a secret trust depends on what was said on three occasions. The first was on August 30, 1973, when Mr. Smith called to see the testatrix. The second was in the morning of January 10, 1974, when Mr. Smith was given instructions on the telephone by the testatrix's brother as to the contents of the new will. The third was in the afternoon of the same day, when the will was executed. The evidence of what was said on these occasions rests on four documents. For the first occasion, on August 30, 1973, there are two documents, namely, an attendance note that Mr. Smith made the next day, and a statement that he made on February 22, 1974, which sets out all the detail that he could remember of his attendance on August 30. For the second occasion there is Mr. Smith's statement made on February 22, 1974. For the third, there are the affidavits of Miss Foster, a solicitor, and Mr. Hart, a legal executive, sworn on November 21, 1977, and December 1, 1977, respectively. It was they who witnessed the will: Mr. Smith could not be there. It will be observed that only Mr. Smith's attendance note of...
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