We understand that where a Will contains a gift to the trustees of an existing settlement which is identified by a date, it is in the discretion of the district judge or registrar to decide whether:
(a) to take no action;
(b) to incorporate the settlement; or
(c) to direct the filing of an examined copy of the settlement in lieu of incorporation.
Would (c) result in the trust deed becoming a public document?
If a gift by Will is left incontrovertibly and unambiguously to an existing trust then a judge has no discretion in the matter at all. The trust document does not thereby become public.
It is rare, because barmy, to incorporate the actual trusts by reference, but that doctrine has permitted all kinds of bizarre documents to be admitted to probate. I imagine that if the trustees wish to accept the gift they would have to admit the trust document to probate!
If the trust does not exist or the trustees validly disclaim it the gift fails. If the gift evinces a general charitable intention the doctrine of cy-pres allows the gift to be applied for alternative charitable purposes but otherwise the Will’s default clause applies or else a partial intestacy.
Leaving property by Will to a trust made by someone other than the testator (and even by him) is thus a trifle risky as his executors probably will have no direct access to it. However, to avoid publicity after probate, secret and half-secret Will trusts have a long legal history. Executors in these cases are obliged only to assent to the gift to the persons named in the Will as the legatees.
The methodology is to name such a person or persons, with or without describing them as trustees, and to ensure that the trust exists at the date of execution and that the gift is communicated to them before death.
But a Will speaks from death and difficulty may arise if by then the trust has been fully distributed. A judge may then be faced with evidence, on the face of the Will itself with a half-secret trust, that the testator did not intend the named legatee to take beneficially. Dead or retired trustees are not a problem as the Court will appoint. But some evidence of the relevant trusts will have to be adduced by those seeking to prove their terms, on which the gift will be held if found valid.
The OP indicates that the trust may have been identified only by date. This may cause an inherent ambiguity resolvable only by extrinsic evidence under s21 AJA 1982. Failure to identify the existing trust conclusively may cause the gift to fail and the drafter to face action for not properly following instructions.
Jack Harper
In my experience option (a) applies - where a will includes a gift to the trustees of a trust, there has been no requirement to produce a copy of the trust instrument when proving the will.
In the present case, if the will merely refers to a trust of a particular date (with no further means of identification), it may be necessary to see the will drafter’s instructions to identify the trust in question, otherwise the gift may fail for uncertainty.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals