Certainty of Objects Flashcards
Certainty of objects test for fixed trusts
Complete List Test
Complete List Test
A comprehensive list of each and every beneficiary.
Need to have both conceptual and evidential certainty
IRC v Broadway Cottages Trust
Authority for complete list test
Conceptual certainty
‘Can the group be defined?’
Evidential certainty
‘Can the people be ascertained?’
Powers of Appointment
A person has authority to deal with property in a particular way, BUT is under no obligation to actually exercise this authority
Certainty of Objects test for discretionary trusts
Given Postulant Test
Given Postulant Test
It is 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)
Re Baden’s Deed Trust
All the judges agreed that conceptual certainty is essential in the description of the objects
They disagreed as to whether the presence of ‘don’t knows’ would mean the failure of the given postulant test.
Stamp LJ in Re Baden
If there are don’t knows, trust will fail given postulant test
Sachs LJ in Re Baden
‘don’t knows’ doesnt mean it has to fail test - burden on claimant to prove he within the class
Megaw LJ in Re Baden
If substantial number of people say they are within the class, trust will pass given postulant test.
West Yorkshire Metropolitan
If the size of the class is too large, may make trust administratively unworkable
Re Manisty’s Settlement
Capriciousness
Trust is capricious (irrational) if it ‘negatives a sensible consideration by the trustee of the exercise of the power’
Re Gestetner’s Settlement
Given Postulant test is certainty of object test for powers of appointment
