Certainty of Objects

Question 1

Steps

Answer 1

1. Fixed trust, discretionary trust or power of appointment?

2. Consider the relevant certainty of objects test that applies to the particular trust

Question 2

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

Answer 2

Fixed Trust

Question 3

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)

Answer 3

Discretionary Trust

Question 4

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

Answer 4

Power of Appointment

Question 5

Certainty of objects test for Fixed Trusts

Answer 5

Complete List Test

Question 6

Complete List Test

Answer 6

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?)

Question 7

Certainty of objects test for discretionary trusts

Answer 7

Given Postulant Test (McPhail v Doulton)

Question 8

Given Postulant Test

Answer 8

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

Question 9

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

Answer 9

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

Question 10

Administrative Workability/Size of Class

Answer 10

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

Question 11

Capriciousness

Answer 11

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

Question 12

Certainty of Objects Test for Powers of Appointment

Answer 12

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)