Can be any of the three classes of power. Trust Powers only What type of trust is it? – To qualify so far, must have obligation to distribute and be special power. Fixed Interest Trust: Trustee has no discretion to select amongst beneficiaries. e.g. give my house to Tim to hold on trust for Jack and Jill.’ ‘I Discretionary Trust: Trustee has discretion to select amongst beneficiaries. e.g. give my house to Tim to hold on trust for whichever of my ‘I children he shall select and, if more than one, in such shares as he shall determine.’ Are there issues of certainty? Mere Power Must satisfy Criterion Certainty whether person within class of objects described – in the provision (McPhail v Doulton). CC has two elements (Re Gulbenkian): Semantic/linguistic Uncertainty not enough information or words are – too subjective, for trustee to perform duties. Uncertain examples: old friends’ (Re to whom a moral Gulbenkian), ‘my ‘persons obligation is owed’ (Re Baden). Certain examples: dependents, employees, ex-employees’ (Re Baden ‘relatives, – held to be relative’). ‘relative’ ‘blood Evidential Uncertainty Cannot list all the members of that class. –
Can be any of the three classes of power. Trust Powers only – What type of trust is it? To qualify so far, must have obligation to distribute and be special power. Fixed Interest Trust: Trustee has no discretion to select amongst beneficiaries. e.g. ‘I give my house to Tim to hold on trust for Jack and Jill.’ Discretionary Trust: Trustee has discretion to select amongst beneficiaries. e.g. ‘I give my house to Tim to hold on trust for whichever of my children he shall select and, if more than one, in such shares as he shall determine.’ Are there issues of certainty? Mere Power Must satisfy Criterion Certainty – whether person within class of objects described in the provision (McPhail v Doulton). CC has two elements (Re Gulbenkian): Semantic/linguistic Uncertainty – not enough information or words are too subjective, for trustee to perform duties. Uncertain examples: ‘my old friends’ (Re Gulbenkian), ‘persons to whom a moral obligation is owed’ (Re Baden). Certain examples: ‘relatives, dependents, employees, ex-employees’ (Re Baden – ‘relative’ held to be ‘blood relative’). Evidential Uncertainty – Cannot list all the members of that class.
Core-Trust-Certainties.docx