Trustees can be given the power to resolve uncertainties regarding beneficiaries, but there is a distinction between evidential and conceptual uncertainty. For evidential uncertainty, where the terms are conceptually clear but there is ambiguity around factual satisfaction, trustees can determine whether conditions are met - as in Re Coxen where trustees decided if a wife permanently lived in a house. However, for conceptual uncertainty where the defining concepts themselves are unclear, trustees cannot cure this defect. Examples are Re Wright's Will Trusts where people who "helped" the settlor was vague, and Re Jones where a "social relationship" was unclear. Subtle distinction is drawn between trustees defining an unclear concept like "moral claim", which

1. 3rd
party opinionclause – where the 3rd
party is a TT
The creator of the trust might give to the trustees an express power to resolve
uncertainty relating to the identity of objects.
This conflict of principles has tended to be resolved by recognizing that trustees are able
to be arbiters about questionsof evidentialcertainty, but not conceptualcertainty. ( re
Tuck)
In Re Coxen, it was held to be legitimate for the testator to allow the trustees to
determine whether a conditionfor revoking a gift had been satisfied, so long as the
terms of the conditionwere defined with sufficient certainty. So, in that case, the
trustees held a house on trust to permit the testator’s wife to live in it, but the house
was to be transferred to those entitledto the residuary estate if the trustees considered
that she had ceased to live there permanently. It was held that this conditionwas not
void for uncertainty, because the decision as to whether she had ceased to live there
permanently was legitimatelyfor the trustees to determine and because the meaning of
‘ceasing to live somewhere permanently’ was considered to be conceptuallycertain.

2. The opinionof the trustees was simply relevant to determine evidentialcertainty,
namely whether the conditionwas satisfied on the facts.
But, if the defining concept is unclear, leaving it to the trustees to define the concept
will not be sufficient to save the trust. So, for example, in Re Wright’s Will Trusts, it was
held that a residuary gift to trustees to use it in ‘their absolute discretion for such
people and institutionsas they think may have helped me or my late husband’was void
for being conceptuallyuncertain.
Similarly,in Re Jones, a fund was held on trust for the testator’s daughter, but she
would forfeit half of her rights to the fund if, in the opinionof the trustees, she had a
‘social or other relationship’with a named person. The notion of ‘social or other
relationship’was considered to be conceptuallyuncertainand this could not be resolved
by reliance on the trustee’s opinionas to what this mean.

3. In Re Leek, Sachs LJ recognized that a power in a discretionary trust to appointanybody
whom the trustee considered to have a ‘moral claim’ on the settlor meant that the
trustees were the arbiters and could determine who had a moral claim. Thismight be
considered to be incorrect because this appears to make the trustees the arbiters of
conceptualcertainty. But, in fact, subtle construction of the power suggests that the
right result was achieved. A distinctionneeds to be drawn between a trust for those
who have a moral claim on the settlor, with those having a ‘moral claim’ being
determined by the trustees, and a trust for those whom the trustees think have a moral
claim on the settlor. The first construction involvesthe trustees defining ‘moral claim’
and this is not acceptable. The second construction involves the objects being those
whom the trustees think have a moral claim on the settlor, in which case the trustees
are not the arbiters of whether the power applies,but rather form an essential part of
the definitionof the power. Thisconstruction was adoptedin Re Coates, in which it was
recognized that a power given by the testator to his wife in his will to pay a small sum of
money if she ‘feels that I have forgotten any friends’ was not void for uncertainty. It was
recognized that the wife could determine whether the testator had forgotten to include
any friends in his will. In other words, the relevant concept was not ‘friends I have
forgotten’, but ‘those people whom my wife considers are friends I have forgotten’.

4. Re Coxen–term issuff certain – askingthe TT to decide – noproblem
Re Wright& re Jones – term isNot conceptual certain–askingthe TT to decide – problem
3rd
party opinion –accounaty, chief rabii – conceptual uncertainty orevideciatil –re Tuck , Re Tepper
TT to decide –evidential uncertainty –but– termis conceptual;certain