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Flashcards in Certainty of Objects Deck (12):


1. Fixed trust, discretionary trust or power of appointment?
2. Consider the relevant certainty of objects test that applies to the particular trust


Trustees have no discretion as to how the trust property is distributed among beneficiaries

Fixed Trust


Trustee is under a duty to select beneficiaries from a class and decide how much they are to receive
(Mettoy Pension Trustees Ltd v Evans)

Discretionary Trust


A person has authority to deal with property in a particular way, BUT is under no obligation to actually exercise this authority.

Power of Appointment


Certainty of objects test for Fixed Trusts

Complete List Test


Complete List Test

A comprehensive list of each and every beneficiary.
IRC v Broadway Cottages Trust

Needs to be both conceptual (can the group be defined?) and evidential certainty (can the people be ascertained?)


Certainty of objects test for discretionary trusts

Given Postulant Test (McPhail v Doulton)


Given Postulant Test

Valid if it can be said with certainty whether any given postulant is or is not a member of the class of objects
McPhail v Doulton


Guidance on Given Postulant Test in Re Baden's Deed Trust (No 2)

All judges agreed conceptual certainty is essential but disagreed on whether the presence of 'don't knows' would mean failure of test

Relatives is conceptually certain

Stamp LJ - if there are don't knows, trust will fail
Sachs LJ - burden is on claimant to prove they are within class
Megaw LJ - if enough people in class, will pass test. But, can fail due to administrative workability/size of class or capriciousness


Administrative Workability/Size of Class

If numbers are too large to form a class, it may make trust administratively unworkable
West Yorkshire Metropolitan CC



Trust is capricious (irrational) if it 'negatives a sensible consideration by the trustee of the exercise of the power' (Re Manisty's Settlement)


Certainty of Objects Test for Powers of Appointment

Given Postulant Test
Re Gestetner's Settlement: Re Gulbenkian's Settlement

Court can intervene if the trustees don't consider a request from a potential beneficiary; or
the trustees act capriciously
(Re Manisty's Settlement)