Summary

On the facts, letters by the testator to the first defendant did not establish the communication of any binding secret trust or any other fiduciary obligation for the benefit of the claimant. In any event, the subject matter of any such trust or obligation was insufficiently certain to be capable of enforcement. * Leave to appeal to the House of Lords refused.

Facts

Appeal by the claimant ('Stephen') against the decision of Carnwath J dismissing his claim that his father ('the testator'), who had left the entirety of his estate to the first defendant ('Marcus'), had established a fully secret trust, as to one third of that estate, in favour of Stephen, alternatively in favour of Stephen and his family. Carnwath J dismissed the action on the ground that the facts and matters pleaded, when taken with the available evidence, demonstrated that the claim was bound to fail, and hence was an abuse of process. Stephen, Marcus and their sister were the only children of the testator, whose wife had predeceased him. Over a period in excess of ten years the terms of successive wills of the testator went from the equal division of his estate between his children to the gift, by his last will in 1982, of his entire estate to Marcus alone. Stephen contended that this progression was explained by the testator's frustration with Stephen's lifestyle at that time, but that, with the passage of time after 1982, his father's attitude had altered. Stephen contended that evidence of this alteration in attitude was to be found in the terms of four letters, settled by the second defendant (who was the testator's solicitor) which the testator had sent to Marcus in the years after 1982, which letters evidenced a fully secret trust in the terms set out above. The second defendant was a partner in the third defendant firm of solicitors, and it was alleged that they had negligently failed to put the testator's intentions into binding effect.

Held

(1) Although the language of the first two letters could be read as if it were imperative, the third was suggestive of language in precatory form and the fourth, if it was intended to be acted upon, was simply incapable of imposing any fiduciary obligation upon Marcus. (2) In any event, there was simply no evidence that any trust or fiduciary obligation which the testator may have intended was intended to extend to one third of his estate. Stephen had failed to identify an arguable case in this regard. (3) The court was satisfied that the testator was well used to acting with legal advice and that he would have made binding provision for Stephen in proper legal form if he had wished to do so. (4) Given the conclusion that the claim as to the testator's intention was bound to fail, the action in negligence against the remaining defendants was also bound to fail.

Appeal dismissed.

* The House of Lords refused an application by Stephen David Margulies for leave to appeal in this case on 9 October 2000.