The example essays in Kibin's library were written by real students for real classes. Certainty of subject matter, i.e. The example by Oliver J was in respect of trust of tangible assets in the nature of cases of Wine . The objects of a trust will depend on the type of express trust in question. This is obviously crucial, since the function of a trust arrangement is to confer a benefit on defined individuals. If the requirement for trust is clearly defined for example Aunty Angela ,Uncle Mukesh then the requirement is clearly satisfied . The case of Lambe v Earnes (1871)held that precatory words in a gift and did not mean that the doner intended the donee to hold the property for trust . Ann Marie in expectation will divide the contents of Gloria’s wine cellar to her old friends and in cases where there is doubt her trustees are responsible to designate who her old friends are. on. In Hunter v Moss (1993) the C. O. *You can also browse our support articles here >. Essays may be lightly modified for readability or to protect the anonymity of contributors, but we do not edit essay examples prior to publication. they are obliged to exercise the discretion), ⇒ The test for certainty of objects in respect of discretionary trusts is the ‘is or is not’ test, ⇒ In McPhail v Doulton [1971] it was said that with a discretionary trust the trustees must exercise their discretion i.e. On the contrary if the instrument as a whole or the context in which precatory words are used ,indicates that a trust was intended ,the courts are quite prepared to give effect to the trust ,for example like Re Hamilton and Re Steel . Alternatively, the trustees may publish an advertisement in the London Gazette (and the appropriate forum in any other countries or jurisdictions, if relevant) to give unknown beneficiaries constructive notice of their entitlement. Introduction: The Purpose of the Certainty of Objects Requirement - For a Trust to exist, A must: (i) hold a specific claim-right or power; and (ii) be under a duty to B not to use that claim-right or power for A’s own benefit (unless and to the extent that A is also a beneficiary of the Trust). It is therefore imperative that a court should be able to identify exactly what share each individual should take. But the mere declaration that a given number of criminals would be held upon trust could not create an interest . Elsewhere, the courts have refused to enforce trusts that are practically, or administratively, unworkable – such as those trusts purporting to nominate a class of individuals that is simply too wide. The 'is or is not' test: can it be said with certainty that any individual is or is not a member of the class? with a fixed trust for students at Oxford university you would have to compile a list of who all the beneficiaries are, ⇒ IRC v Broadway Cottages [1955]: the trust in this case failed because they could not identify the list of beneficiaries (Jenkins LJ), ⇒ Re Gulbenkian’s Settlement [1970]: House of Lords confirmed the list test, ⇒ With a discretionary trust, trustees have the discretion to decide how trust property is to be divided, but no power not to divide it (i.e. ⇒ Lord Wilberforce gave example of an administratively unworkable trust as one for “all residents of Greater London” but not one for “relatives” - McPhail v Doulton [1971], ⇒ In R v District Auditor, ex parte West Yorkshire Met CC (1985) a trust for West Yorkshire was held to be administratively unworkable, so the power was consequently void. Questions: Additional essay and problem questions: Chapter 3: The three certainties : Question 1: Certainty of objects: Question 1: Certainty of objects . OT Computers Ltd v First National Tricity Finance Ltd [2007] WTLR 165, Re Gulbenkian’s Settlement Trusts [1970] AC 508, Hardcastle, I. M. ‘Administrative unworkability – a reassessment of an abiding problem’ in Conveyancer and Property Lawyer (1990) Jan/Feb, 24-33, Hudson, A. Lord Denning in Re Vandervell’s Trusts (No.2) [1] stated: “It is clear law that a trust (other than a charitable trust) must be for ascertainable beneficiaries.” Not sure what I'd do without @Kibin - Alfredo Alvarez, student @ Miami University. However, such a trust will not automatically fail for uncertainty of condition, ⇒ Condition precedent: a condition which must be met in order to benefit from trust, ⇒ Condition subsequent: condition which applies after the beneficiary has received a benefit and which will, if met, end or vary the trust, ⇒ Both must be certain. Providing that a given description of beneficiaries is clear in a conceptual sense, the arrangement will not fail because it might be difficult to work out whether a given person satisfies the description. The effect of uncertainty of objects is that the resulting trust arises in favor of the transfer. Don’t miss a chance to chat with experts. where the trustees have to use all the trust property for the benefit of a fixed class of individuals (in other words, an exhaustive discretionary trust is a trust where trustees must allocate all the property and cannot retain any of it) - then those individuals, if all of them act together, may invoke the Saunders v Vautier principle. Exactly what I needed. This is the 'list' test (or Ascertainability test): it must be possible to construct a definitive list of who all the beneficiaries are e.g. the trustees have a discretion as to whether they want to divide the property when they merely have a power: there is no obligation to do so, ⇒ In Re Ogden [1933] - which is the old law - a trustee had discretion to divide money to certain political organisations. Read the question below and attempt your own diagram plan before revealing our suggestion. Make sure that you've checked with your lecturer that they are happy for you to send your answer to them before you email! The evidence suggests that the courts have been willing to take a measured, accommodating approach in such situations. A discretionary trust is one that trustees have a discretion as to which members of the class of beneficiaries are to benefit from the trust property and in what shares for example where $20,000 is transferred to trustee upon trust such as my employees or employers. Get Your Custom Essay How then could one know what would of if anything be left after the death of Nancy, Gloria’s friend . Not only can it affect the people around them, but it can affect their own lives as well. The court was unwilling to accept the idea that its jurisdiction would effectively have been subsumed to the decisions made by the trustees. For example His Honour Oliver J. stated a former who declares himself (without identifying them can be said to have created a preferred and complete trust whatever rights he may confer by such declaration of a matter of contract . Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. However, conditions subsequent may be ‘conditions of defeasance’ e.g. Gifts are expressed to be subject to a condition . The House Of Lords in Mc Phail v Douton ,concerns a discretionary trust in favor of a certain Mr Bedens employees and ex employees preferred in Re Gasteneer and Re Gulberkan whether the words employed in describing the discretionary class are such that it can be said with certainty that the individual is /is not a member of that class. For more information on choosing credible sources for your paper, check out this blog post. Most importantly, it does vitiate a trust if the exact whereabouts of some of the potential members of a class is not known, as long as it is possible to arrive at a complete list of beneficiaries in a conceptual sense. However, in McPhail v Dalton this was reconstituted by Lord Wilberforce. It was held that there was no trust, since it was uncertain what would be left after the death of the husband. Martin author of Hansbury and Martin asserts that conceptual uncertainty may in some cases be cured by providing that the opinion of the third party is to settle the matter . We'll take a look right away. In Re Wynn a judge refused to enforce an arrangement purporting to give the trustees the power to overrule any objection that might be raised by the beneficiaries in a dispute between the two entities. This rule applies for all three elements ,there would be no trust without one or more of the elements not being present . Certainty of Objects is one of the three certainties needed in order to create a successful trust. ⇒ In Re Allen; Faith v Allen [1953]: Property was left to the eldest son who was a member of the Church of England. This essay will argue that, nevertheless, the separate tests deployed by the courts to establish certainty of objects in both fixed and discretionary trusts has functioned well in recent decades, promoting fair and equitable outcomes where possible. Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of LawTeacher.net. In Re Hay’s Settlement Trust, the court held that it would be prepared to hold that an intermediate trust (one excluding certain specified individuals, and including everyone else) would be administratively unworkable because the a trustee’s obligations in relation to a discretionary trust are more stringent than for a power of appointment: as trustees are under an obligation to distribute trust property, they would have to carry out a wider and more systematic survey than those with power of appointment. However, the category of discretionary trusts has proved more contentious, though, as the next section will explain, the courts have adopted an equally sensible and flexible approach to their operation in recent decades. They're not intended to be submitted as your own work, so we don't waste time removing every error. Administration of Justice Act 1982: With wills or trusts created by wills, you may now use extrinsic evidence to determine testator’s subjective intent where a will is ambiguous, If you are left a gift in the will but the deceased sold that property before he died, the gift will fail, In Re Slater, the deceased had got rid of his shares in a water company before he died so the testamentary gift failed. custom paper from our expert writers, The Three Certainties. certainty as to the beneficiaries of the intended trust. The third scenario given also has to prove all three elements in order to illustrate that a trust exists. It appears that in recent decades the test laid out in McPhail v Dalton has functioned effectively, allowing the courts a measure of flexibility but still vitiating arrangements that are clearly conceptually uncertain. You can view samples of our professional work here. It is not however an absolute rule that a trust can never be created where precatory words are employed . the first one) there is no issue: a valid private trust will take effect as there is no uncertainty of objects, ⇒ The fourth option (i.e. The sensible logic behind this decision is that an obligation to carry out such a survey could itself run down the trust fund through expenses, and thus defeat the object for which it was intended in the first place. The case of Sprange v Bernard a testatrix gave property by her will to her husband for the sole use and directed that at his death whatever is left that he does not want for his own use was to be divided between her sister and brother . Check out our Privacy and Content Sharing policies for more information.). The difference between the two is crucial: fixed trusts are constituted for the benefit of pre-determined individuals or classes of individuals in which each is entitled in equity to a fixed share; in contrast, in a discretionary trust it is within the gift of the trustees to allocate the distribution of trust property among a defined class of beneficiaries, or even on occasion to decide on the membership of a class of potential …
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