Re Baden’s Deed Trusts (No2) [1973]

Disposition remitted to Chancery Division so House of
Lords test could be applied.
Eventually came to Court of Appeal.
Executors claimed it could not be shown that any person
definitely is or is not within the
class (as required by Gulbenkian test).
Court of Appeal rejected argument, on differing
Sachs LJ avoided difficulty by emphasizing that court was
concerned only with conceptual uncertainty.
Evidential difficulties not a problem.
Megaw LJ gave probably the best test – requirement
that it can be shown with certainty that a substantial number of objects fall
within the class.
Stamp LJ gave strictest test – emphasized that it must
be possible for trustees to make comprehensive survey of the range of objects, but doesn’t have to
list every single beneficiary.
[This is practically a return to the class
ascertainability test.]