However, as it will be distinguished below, determining certainty of objects in discretionary trusts has proved to be more contentious. R v District Auditor Ex p. Discuss the different reasoning adopted in Re Tuck’s ST. Such a wide variety would prove insensible, as the potential for negligence would be substantially higher. Furthermore the certainties are an important safeguard against the risk of fraud, which is ever present in substantial property transfers.
It is submitted therefore that a certain degree of distortion is a necessary and welcome characteristic of the case-based regime that defines the application of the law of trusts. Although this addition for the purpose of remedy shows practicality of delivery, it seems that the most basic of requirements is nonetheless unfulfilled. Megaw LJ arguably takes the most liberal approach of the three judges with the intention of avoiding evidential uncertainty. It is clearly necessary to ensure that trust property can be specified with precision and dealt with precisely in accordance with the intentions of the settlor. However, because the term has no specific technical meaning Cross J ruled that the clause could not be delineated with sufficient precision and therefore that it could not be upheld. The test is the same as for fiduciary powers Re Gulbenkian’s Settlement. Such a wide variety would prove insensible, as the potential for negligence would be substantially higher.
An illustration of how the courts enforced the complete list test was demonstrated in Re Eden. Skip to main content.
Reflect on the reasons for changing the test for certainty of objects for discretionary trusts — do the benefits outweigh any problems? The test is the same as for fiduciary powers Re Gulbenkian’s Settlement.
Emery provides an excellent discussion of these issues see, chapter 3 key debates. Abass, Equity and Trusts: It is clearly necessary to ensure that trust property can be specified with precision and dealt with precisely in accordance with the intentions of the settlor.
A system of law that strives for consistency over considerations of pragmatism and emotion – which might be better described as fair play and natural justice – is a system of law in danger of sclerosis and iniquity.
Thus the fixed and discretionary trusts where born to ensure that the certainty is met. This will be considered by evaluating the law from the last half century and demonstrating how it has developed thus far.
However, it has been proven that the simplicity of application surrounding fixed trusts is not shared in respect to discretionary trusts. It is submitted that this suggests that there are boundaries to pragmatic intervention where at least the intention of the settlor is clear. But as it will be seen from the majority of cases, the impact surrounding the certainty of objects has indeed been a rather positive one.
Due to the consistent issues posed through the uncertain wording used, the court set out to provide a sesay to further expand the meaning of conceptual certainty9. Pragmatism is also an essential component in the field of discretionary trusts, where there may be an attempt to enforce open-ended or amorphous obligations.
It is probably true to assert that, to some extent, pragmatism and emotion have indeed distorted the court’s ability to interpret consistently the three certainties required for the creation of a trust. If you are the original author of this content and no longer wish to have it published on our website then please click on the link below to request removal:.
Beneficiaries must be identified with sufficient clarity that they can be ascertained with certainty. The three certainties are essential conditions for the creation of a legally recognised and enforceable trust.
Click here to sign up. The diversity of opinion esay the court is indicative of the uncertainty of the test itself. Some difficulty has been faced practically in the use off fixed trusts, Re Benjamin held that the trustee has a choice to make if a beneficiary is identified yet mvphail due to reasons such as death or inability to find the person Each of esaay is qualified to a high level in our area of expertise, and we can write you a fully researched, fully referenced complete original answer to your essay question.
In such case, the relevant object will be a designated purpose chosen with the intention of benefitting society or some part of it. As such consistency is important and it is argued that it is necessary to ensure that any distortions caused by considerations of pragmatism or emotion are fully justified in the circumstances and against the backdrop of the wider field of law in which they sit. Fixed Trusts Fixed trusts have long mcphakl taken in a rather strict light due to their requirement to have the beneficiaries to be ascertainable or distinguishable.
Equity and Trusts Critically evaluate the test for certainty of objects in the law of trusts and assess whether developments in the last half- century have had diulton positive or negative impact on the law.
Although, it may be agreed that discretionary trusts may need further analysis to clarify the uncertainty that sound it due to the conflicting xoulton within the judgments presented by the Lords in McPhail. Do the different approaches in the Court of Appeal use ‘conceptual certainty’ correctly? The court takes a very strict approach in applying this — if a trustee is unable to draw a complete list of objects at the time of distribution, the complete list test will not be satisfied and the trust will be invalidated.
Administrative Unworkability and Capriciousness Despite the above certainty requirements, it must be noted that whilst a class of objects may be conceptually certain, the trust may still fail due to being administratively unworkable. Defining the Three Certainties In the landmark case of Knight v Knight Lord Doulto set out the three certainties necessary to constitute a legally sound private express trust settlement and in so doing he succinctly defined the expectations the law imposes on the settlor: Lord Denning was a brilliant but controversial judge, rising to Master of the Rolls in the Court of Appeal in the latter half of the twentieth century.
If subject matter is uncertain the transaction will doultn and ownership in property will not be transferred. As the objects of a trust are strictly fixed from the outset, the trustee does not have any discretion in who receives the trust property or in the way that it dulton distributed.