The Certainty Once a has determined whether the clause in questions creates a Interest; or Discretionary; or Mere Power. It must apply the relevant test for certainty. Unless the class can be described with sufficient certainty the clause will be held invalid and the trust will fail. – Fixed interest trusts: list certainty In fixed interest trusts, the amount that each beneficiary is stipulated from the outset. This can be because the trust instrument itself has specific shares. I leave my shares in X Pty Ltd to my trustees on trust and appoint my son 50 percent and my daughter 50 percent I leave my shares in X Pty Ltd to my trustees on trust for my three children in equal shares. In these examples, the shares in the trust are clearly specified however, if it is said – I leave my shares in X Pty Ltd to my trustees on trust for my three children. The settler has not specified the relevant proportionate breakdown, and the Court will assume that they are to be shared equally. However, what is common in each of these examples is that the objects are specified. List Certainty For a trust, the trustee must be able to make a of names so that the trustee can ‘list’ effectively distribute the property to them. - If such a list cannot be made, the trust will fail per Cannot make a list? will fail (1975) 132 CLR 458 & Kinsela v Caldwell Commissioner of State Revenue v (2004) 55 ATR 501. Viewbank Proprieties Pty Ltd The list of beneficiaries must be compiled at the time of Time of distribution – distribution, not at the time of creation thus, unborn children can be beneficarie Re – [1902] 2 Ch 650 Bowles; Amedroz v Bowles
The Certainty Once a has determined whether the clause in questions creates a Interest; or Discretionary; or Mere Power. It must apply the relevant test for certainty. Unless the class can be described with sufficient certainty – the clause will be held invalid and the trust will fail. Fixed interest trusts: list certainty In fixed interest trusts, the amount that each beneficiary is stipulated from the outset. This can be because the trust instrument itself has specific shares. I leave my shares in X Pty Ltd to my trustees on trust and appoint my son 50 percent and my daughter 50 percent I leave my shares in X Pty Ltd to my trustees on trust for my three children in equal shares. In these examples, the shares in the trust are clearly specified – however, if it is said I leave my shares in X Pty Ltd to my trustees on trust for my three children. The settler has not specified the relevant proportionate breakdown, and the Court will assume that they are to be shared equally. However, what is common in each of these examples is that the objects are specified. List Certainty For a trust, the trustee must be able to make a ‘list’ of names so that the trustee can effectively distribute the property to them. Cannot make a list? will fail - If such a list cannot be made, the trust will fail per Kinsela v Caldwell (1975) 132 CLR 458 & Commissioner of State Revenue v Viewbank Proprieties Pty Ltd (2004) 55 ATR 501. Time of distribution – The list of beneficiaries must be compiled at the time of distribution, not at the time of creation – thus, unborn children can be beneficarie Re Bowles; Amedroz v Bowles [1902] 2 Ch 650
Trusts_Summary.docx