Equity & Trusts - Three Certainties: Objects скачать в хорошем качестве

Equity & Trusts - Three Certainties: Objects

Certainty of objects is more about the people who are the beneficiaries of a trust instrument rather than the physical objects that make up a trust. We have to examine the different types of trust: Fixed trusts are simple because they clearly identify the beneficiaries. Fiduciary mere powers give trustees a power without the obligation to actually use that power. As far as the certainty of objects is concerned we have the is or is not test from Re Gulbenkian [1968] but this raises problems around a small percentage of postulants where there is uncertainty. Lord Browne-Wilkinson attempted to resolve this in Re. Barlow [1979] by seeing the benefits as a series of identical, individual gifts. Discretionary trusts are not truly discretionary as they require a trustee to exercise their power. McPhail v Doulton [1975] applied the is or is not test but in Re. Baden (No. 2) [1973] the justices attempted to resolve the uncertainty issue: Sachs LJ: Onus is on the apparent beneficiary Megaw LJ: Trust can still be valid with minor uncertainties Holders of personal powers are not subject to a fiduciary duty and so certainty of objects does not apply; Megarry VC in Re. Hay’s ST [1981]. There are some grey phrases and areas of language worth examining closely: 'Friends' Generally uncertain; Brown v Gould [1972] BUT Re. Baden (No. 2) [1973] 'Customers' Uncertain; Sparfax v Dommett [1972] 'Relatives' Statutory next of kin; McPhail v Doulton [1970] There are also ways of resolving uncertainty: Using experts Re. Tuck’s ST [1978] Rules that set out how to define beneficiaries Re. Wright’s WT [1857] Administratively workable Re. Hay’s ST [1982] There also has to be consideration of partial failure of trusts on grounds of uncertainty: Generally where a trust partially fails the whole trust fails Re. Gulbenkian [1968] Remove the uncertain clause of the instrument Re. Leek [1969] Courts will always try to validate a trust where possible to do so Harman J in Re. Gestetner [1953]