Unit 2

Question 1

McPhail v Doulton [1971]

Answer 1

Lord Wilberforce stated that ‘a trust should be upheld if there is sufficient practical certainty in its definition for it to be carried out, if necessary with the administrative assistance of the court, according to the expressed intention of the settlor.’

Question 2

PTNZ v AS [2020] EWHC 3114 (Ch), [42]

Answer 2

Master Shuman held that the court needs ‘to sit in the settlor’s armchair and construe the objective meaning of the words in the light of the relevant factual matrix.’

Question 3

Knight v Knight (1840) 3 Beav 148

Answer 3

Lord Langdale MR established the three certainties required to create a valid trust. These include: the intention must be expressed in imperative terms, the subject matter of the trust must be clearly defined, and the beneficiaries or persons intended to benefit must be identifiable with certainty.

Question 4

Edwards v Carter [1893] AC 360

Answer 4

the court held that children are deemed to lack the maturity required to form a valid trust. However, such a trust is considered voidable rather than entirely void. This means that upon reaching the age of majority (18 years old), the person can choose to affirm or repudiate the trust

Question 5

Re Beaney [1978] 1 WLR 770

Answer 5

a trust created by a mentally incapacitated person is void ab initio, meaning it is invalid from the outset. According to the Mental Capacity Act 2005, the court has the authority to settle property or execute a will on behalf of an individual who lacks mental capacity.

Question 6

Paul v Constance [1977] 1 WLR 527

Answer 6

the court held that the settlor does not need to understand the legal technicalities of a trust. If it can be demonstrated that the settlor intended to create a trust, the court will uphold that intention based on the circumstances and conduct indicating such a wish.

Question 7

Wright v Atkyns (1823)

Answer 7

Lord Eldon emphasised that the words used to create a trust ‘must be imperative.’ While it is preferable to use clear terms such as ‘to hold in trust,’ such specific language is not strictly required, provided the intention to create a trust is clear from the wording used.

Question 8

Deslauriers v Guardian Asset Management Ltd [2017] UKPC 34

Re Kayford (1975)

Answer 8

the courts confirmed that the word ‘trust’ does not need to be explicitly used to create a valid trust.

Question 9

North v Wilkinson [2018] EWCA Civ 161

Answer 9

the court held that no specific language is required to create a trust, as long as the intention is clear

Question 10

Staden v Jones (2008)

Answer 10

The court confirmed that the term ‘trustee’ doesn’t need to be used as long as the wording shows an intention to create trust obligations.

Question 11

Kinloch v Secretary of State of India (1882) 7 App Cas 619

Answer 11

the court held that even if the word ‘trust’ is used, it does not automatically mean a trust has been created

Question 12

Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164

Answer 12

the court held that ‘the court can infer an intent to create a trust from the circumstances of the case, the conduct of the parties, and careful consideration of any relevant document.’

Question 13

Lambe v Eames (1871) Ch App 597

Answer 13

The testator left his estate to his wife, saying it was “for the benefit of herself and her family”. The court held these were precatory words (a wish, not a legal obligation) and did not create a trust.

Sir R Malins VC ruled that to impose a trust, there must be clear intention to restrict the absolute gift, which was not present. The wife received full ownership, and other family members had no enforceable rights.

Question 14

Re Hamilton [1895] 2 Ch 370

Answer 14

the words ‘I wish them to bequeath them equally between the families of [X] and [Y] in such mode as they shall consider right’ were considered precatory, expressing a non-binding wish rather than creating a trust obligation.

Question 15

Re Diggles (1888) 39 Ch D 253

Answer 15

the phrase ‘it is my desire that she allow AG an annuity of £25 during her life’ was held insufficient to impose a trust.

Question 16

Mussoorie Bank v Raynor (1882) 7 App Cas 321

Answer 16

the words ‘feeling confident that she will act justly to our children in dividing the same when no longer required by her’ also lacked imperative force, resulting in no trust being created

Question 17

Re Steele’s Will Trusts [1948] Ch 603

Answer 17

I request that ‘my said son to do all in his power’ was deemed a precatory statement, failing to create a legally enforceable obligation

Question 18

Re Adams and the Kensington Vestry (1884) 27 Ch D 394

Answer 18

The testator left his estate to his wife, “in full confidence” that she would distribute it between his children. The court held these were precatory words, creating no legal obligation, and the wife received an absolute interest.

Cotton LJ stressed that the court must assess the entire will, not just isolated words like “confidence”. While such terms could imply a trust in some contexts, in this case, the overall wording showed the wife was meant to inherit absolutely

Question 19

Comiskey v Bowring-Hanbury [1905] AC 84

Answer 19

The testator left his estate to his wife “in full confidence” that she would distribute it to his nieces, and if she did not, it would be divided equally among them after her death.

The Court of Appeal initially held that the wife took the estate absolutely with no trust for the nieces. However, the House of Lords reversed this, ruling that the “gift over” clause imposed a binding obligation, creating a trust for the nieces. The court emphasized that precatory words can create a trust if the overall will shows clear intention, as seen in the default clause.

Question 20

Pearson v Lehman Bros. Finance SA [2010] EWHC 2913

Answer 20

the court held that terms such as “trust,” “custody,” “belonging,” “ownership,” or “title” used by the parties can be persuasive but are not conclusive in determining whether a beneficiary’s proprietary interest in the property exists.

Question 21

Vucicevic v Aleksic [2017] EWHC 2335 (Ch)

Answer 21

The court held that the key factor in creating a trust is the testator’s intention, assessed through the words used, context, and circumstances.

The word ‘trust’ doesn’t need to be explicitly used for a trust to be valid.

Question 22

Steele’s Will Trusts [1948] Ch 603

Mutatis Mutandis

Answer 22

the testatrix, through clause 2 of her will, gave a diamond necklace to her son as an heirloom, using language identical to that in Shelley v Shelley (1868) LR 6 Eq 540. Wynn Parry J held that the precise replication of wording from a professionally drafted will considered in Shelley v Shelley strongly indicated that the testatrix intended the necklace to devolve in the same manner.

The court concluded that the deliberate use of established legal language reflected a clear intention to create a binding trust concerning the diamond necklace’s inheritance.

Question 23

Wilkinson and others v North and another [2018] EWCA Civ 161, [2018] 4 WLR 41

Answer 23

David Richards LJ stressed that a trust has significant and irreversible consequences, as the settlor relinquishes ownership of the property.

Therefore, the law requires certainty in three key elements.

These elements must be assessed objectively from documents, words, or conduct at the time of creation.

Later statements about the settlor’s intention are irrelevant.

Question 24

Re Gulbenkian [1970] AC 508

Answer 24

Lord Upjohn held that courts must interpret the settlor’s intentions using judicial knowledge, experience, and common sense.

If the language is unclear, the court should assign a reasonable meaning to the words, but without distorting their natural meaning.

Question 25

Jones v Lock (1865-66) LR 1 Ch App 25

Answer 25

Robert Jones attempted to give a £900 cheque to his infant son, saying “I give this to baby”, but took it back and locked it away. He intended to amend his will but died before doing so. Lord Cranworth LC held that there was no valid gift or trust, as the words used were too informal and lacked certainty. He warned against treating casual statements as binding trust declarations. The cheque remained part of Jones’ estate, passing to his other children.

Question 26

Paul v Constance [1977] 1 WLR 527

Answer 26

The deceased repeatedly told the plaintiff, “The money is as much yours as mine,” regarding a bank account in his sole name. They lived together, shared bingo winnings, and used the account jointly. After his death, his estranged wife took out letters of administration, but the plaintiff claimed an equitable interest in the account, arguing an express trust had been created. The court upheld that the deceased’s words and conduct showed a clear intention to create a trust, despite the lack of formal legal terms. Scarman LJ stressed that the court must consider the context, recognizing the deceased and plaintiff’s shared financial arrangement. The plaintiff was awarded half the account.

Question 27

Henry v Hammond [1913] 2 KB 515

Answer 27

Unlike the family context, there is more of a reluctance to find a trust arising from a commercial transaction/relationship

Question 28

Wang v Darby [2021] EWHC 3054 (Comm)

Answer 28

The High Court considered whether a trust existed over cryptocurrencies exchanged between the parties. The court held that imposing a trust would frustrate the commercial objectives of the transactions, which involved mutual exchanges with obligations to return equivalent assets. The court emphasised that a trust requires a clear separation between trustee and beneficiary interests, which was incompatible with the mutual obligations of the arrangement. In commercial contexts, a trust should only be imposed if it aligns with the parties’ intentions and the transaction’s structure.

Question 29

R v Clowes (No 2) [1994]

Answer 29

The court considered segregation of property as an indicator of a trust, though not conclusive on its own. In this case, investors’ money was held in designated client accounts, suggesting a fiduciary responsibility and a trust relationship.

Question 30

Day v Harris [2014] Ch 211

Answer 30

Boxes of books, paintings, and manuscripts from Sir Malcolm Arnold were delivered to his children with a note stating they were “to keep and share or sell if they liked”. The court held that this wording indicated an absolute gift, not a trust for his carer, despite her power of attorney and entitlement under the will. The court reinforced that a failed gift cannot be reinterpreted as a trust. The delivery and clear wording confirmed the children’s full ownership of the items.

Question 31

Loring v Woodland Trust [2014] EWCA Civ 1314

Answer 31

judges should apply common sense when interpreting testamentary documents

Question 32

Re Freud (deceased) [2014] EWHC 2577; Loring v Woodland Trust [2014].

Answer 32

Judges can take extrinsic evidence where Section 21 of the Administration of Justice Act 1982 applies

Question 33

Lassence v Tierney (1849) 41 ER 1379

Answer 33

A legacy given in terms suggesting outright ownership (e.g., “I give my property to X absolutely”) will be treated as an absolute gift, even if accompanied by non-binding recommendations on its use. In this case, the court held that the legacy was an absolute gift, as there was no clear intention to create a trust. Any moral obligations attached were not legally binding and did not affect the absolute nature of the gift. If a binding trust is intended but fails due to uncertainty of objects or purpose, the property reverts to the testator’s estate.

Question 34

Swift v Dairywise Farms Ltd

Answer 34

The court held that milk quotas are property under s.436 of the Insolvency Act 1986 because they have independent economic value and can form the subject matter of a trust.

Question 35

AA v Persons Unknown [2020]

Answer 35

The court held that cryptocurrencies are property under English law, despite not fitting traditional categories, due to their economic value and assignable ownership. Bryan J confirmed they can form the subject of proprietary rights, granting an interim injunction over 109.25 bitcoins paid as ransom

Question 36

Wang v Darby [2021]

Answer 36

The High Court examined whether cryptocurrency could be held on trust. It concluded that no trust existed, as the commercial nature of the relationship did not align with the requirements for creating a trust.

Question 37

Osbourne v Persons Unknown [2022]

Answer 37

The court held that non-fungible tokens (NFTs), such as digital art, are considered property. They can be the subject of a trust, reinforcing the legal recognition of NFTs as assets with proprietary rights.

Question 38

Tulip Trading Ltd v Bitcoin Association for BSV & Ors [2023]

Answer 38

The court ruled that bitcoin developers owe fiduciary duties to their users. This decision challenges the notion of cryptocurrencies being entirely "decentralised" by imposing legal obligations on developers.

Question 39

In the Estate of Last, Decd. [1958]

Answer 39

The testatrix left her estate to her brother with instructions that “anything that is left” should go to her late husband’s grandchildren upon his death. The Treasury Solicitor argued it was an absolute gift, but Karminski J held that the words created a trust in favor of the grandchildren. The phrase was deemed sufficiently certain, as it referred to identifiable property remaining from the estate. The grandchildren were entitled to the remaining estate.

Question 40

Re Golay’s Will Trusts [1965]

Answer 40

the testator directed that Mrs. Bridgwater should receive "a reasonable income" from his properties. The court ruled that "reasonable income" was objectively determinable, based on what is generally considered reasonable, rather than being subjectively defined by the testator or another person. This allowed the court to effectively carry out the testator's intention using an objective standard.

Question 41

Palmer v Simmonds (1854)

Answer 41

The testatrix left the “bulk” of her residuary estate to four beneficiaries. The court held that “bulk” was too vague to identify the subject matter with certainty, making the gift invalid due to lack of clarity.

Question 42

Sprange v Barnard

Answer 42

The phrase "the remaining part of what is left" was deemed uncertain because it did not clearly identify the specific property to be gifted.

Question 43

Re Jones

Answer 43

The phrase “such parts of my estate as she shall not have sold” was held uncertain, as it depended on the recipient’s subjective decision to sell or retain property, making the subject matter unclear.

Question 44

Boyce v Boyce

Answer 44

The phrase "all my other houses" was unclear, as it did not specify which houses were intended, leading to uncertainty in the trust’s subject matter.

Question 45

Anthony v Donges

Answer 45

The phrase "such minimal part of my estate [to which my wife is] entitled for maintenance purposes" was too vague to establish the exact amount or property for the wife’s benefit.

Question 46

Re Kolb’s Will

Answer 46

The term "first class and blue chip investments" lacked clarity, as there is no universally agreed definition of what qualifies as "blue chip investments," making the trust uncertain.

Question 47

Re London Wine [1986]

Answer 47

Where trust property consists of tangible goods, those goods must be segregated from a larger, homogenous mass to form part of a trust. Ruling: The trust failed because the wine bottles had not been separated from the bulk stock in the warehouse, making the subject matter too uncertain

Question 48

Re Goldcorp Exchange Ltd.

Answer 48

This case involved tangible property (gold bullion), where non-segregation of specific goods led to uncertainty in the trust’s subject matter. Ruling: The trust failed for want of certainty, as the gold held on behalf of customers was not segregated from the company’s general holdings.

Question 49

Hunter v Moss (1994)

Answer 49

For intangible property (like shares), there is no need to segregate specific items from a homogenous mass. A trust over a proportion of an undifferentiated mass of intangible property can still be valid. Ruling: The court upheld the trust over 50 shares out of 950 shares without the need for physical segregation, distinguishing this case from Re London Wine Co.

Question 50

Lord Neuberger

Answer 50

Supports Hunter v Moss, but reluctantly.

Question 51

Roy Goode – “Are tangible assets fungible?” [2003] LMCLQ 379

Answer 51

* Shares are not separate pieces of property. * They represent fractions of a single asset (the company’s share capital). * Co-ownership theory applies to shares.

Question 52

White v Shortall [2006] NSWSC

Answer 52

the court upheld the decision in Hunter v Moss but disagreed with the Court of Appeal's reasoning. Instead, the court applied the factional/co-ownership theory of Goode, which allows for the recognition of a trust over intangible property, such as shares, even without specific identification. The case reaffirmed that for intangible property like shares, a trust can be validly declared without the need for segregation or specific identification, as long as the parties' intentions are clear.

Question 53

Jill Martin – “Certainty of objects – what is heresy?” [1984] Conv 304

Answer 53

Describes Hunter v Moss as “fair, sensible, and workable”.

Question 54

Hayton – “Uncertainty of subject-matter of trusts” (1994) LQR 335

Answer 54

Criticises Hunter for lacking clarity in identifying the subject matter of the trust.

Question 55

MacJordan Construction Ltd v Brookmount Erostin Ltd [1991]

Answer 55

* Argued that rules on identification should not depend solely on whether property is tangible or intangible. * Privy Council in Re Goldcorp supported MacJordan over Hunter.

Question 56

Peter Birks – “Establishing a Proprietary Base” [1995] RLR 83

Answer 56

* Argued that Hunter weakens certainty in trust law by allowing unsegregated assets to form the subject matter of a trust.

Question 57

Ruscoe v Cryptopia [2020]

Answer 57

That the creditors were wrong to rely on Re Goldcorp to argue that there could be no certain trust of a fluctuating, unallocated fund of cryptocurrencies and that cryptocurrencies and other digital assets constitute “property” held on express trust for the individual account holders and that Re Goldcorp should be distinguished as it concerned tangible assets in a sale of goods context the court held that cryptocurrencies are also intangible property and can be held on trust without the need for specific identification or segregation.

Question 58

Boyce v Boyce (1849)

Answer 58

a testator left two houses to his daughters, with one to be chosen by the older daughter and the other going to the younger. However, the older daughter died before making her selection. Shadwell VC held that the trust failed, and the property reverted to the settlor’s estate on a resulting trust.

Question 59

Burrough v Philcox

Answer 59

the court held that when there is uncertainty in a trust, it can be resolved through the trustee's discretion or, if necessary, by applying the legal maxim "equity is equality”, equal division among beneficiaries to resolve the issue.

Question 60

Re Knapton [1941]

Answer 60

The testatrix left houses to family members, but beneficial interests were uncertain. The court held that the right of choice should be given to nephews and nieces first, followed by other family members in the order named. If they disagreed, the decision was to be made by lot or drawing straws.

Question 61

Curtis v Rippon (1820)

Answer 61

The testator appointed his wife as the guardian of his children and left her all his property, with instructions to use it for the “spiritual and temporal good” of herself, the children, the Church, and the poor. Principle: Where the beneficial shares are uncertain and there is a gift, the gift takes effect.

Question 62

Morice v Bishop of Durham [1805]

Answer 62

Object certainty is necessary due to the beneficiary principle, which requires a trust to have identifiable beneficiaries for the court to enforce it Sir William Grant MR stated that a trust must have a definite object, as an uncontrollable power of disposition would equate to ownership, not a trust. However, this does not apply to charitable trusts, where a general charitable purpose is sufficient, and the bequest will not fail due to uncertainty of the object.

Question 63

Fixed trust Essential Test:

Answer 63

Requires a list of all beneficiaries to be compiled at the time the trust property is to be distributed. The trust must meet the complete list test, meaning all beneficiaries must be identifiable. Application: This was established in IRC v Broadway Cottages [1955], where a valid trust was possible only if all beneficiaries could be identified and listed. Complete list test was affirmed in OT Computers v First National Tricity Finance [2003]

Question 64

Fixed trust Conceptual Certainty

Answer 64

The objects (beneficiaries) must be defined clearly. If the definition of the beneficiaries is unclear, the trust is void. Application: A trust for "good friends" is uncertain because the concept of "good friends" is too vague. OT Computers v First National Tricity [2003] a trust for "urgent suppliers" was too unclear to be valid.

Question 65

Fixed trust Evidential Certainty:

Answer 65

This test checks whether it's possible to prove who the objects of the trust are. If the identity of the beneficiaries cannot be proven, the trust fails the complete list test. Application: For example, if a trust is made to "members of her school’s rugby team," but it’s impossible to prove who was on the team, the trust cannot be validly executed.

Question 66

Fixed trust Ascertainability:

Answer 66

Not applicable

Question 67

Fixed trust Administrative Unworkability:

Answer 67

Not applicable

Question 68

Fixed trust Capriciousness:

Answer 68

Not applicable

Question 69

Clayton v Ramsden

Answer 69

The testator left a legacy to his unmarried daughter, with a condition that her interest would end if she married someone “not of Jewish parentage and faith”. The court held that the phrase “Jewish faith” was uncertain due to its lack of a clear definition. Since the condition was ambiguous, it failed, and the trust was declared void. CS is only valid if the exact event that will result in the beneficiary’s interest’s defeat is certain

Question 70

Re Barlow’s Will Trust [1979]

Answer 70

the testatrix left some pictures in her will on trust for sale, directing the executor to allow family and friends to select and buy them at a lower market value. The issue was whether it was clear who her "friends" were. The court held that the term "friends" was sufficiently clear in this context. While the term "friends" might not be conceptually certain for a discretionary trust or fiduciary powers, it was certain enough as a condition for a fixed trust. The court applied the ‘one person test’ from Re Allen [1953], where the onus was on the object (in this case, a "friend") to prove they satisfied the condition. Thus, anyone who could prove they were a friend to the testatrix could claim the benefit of the trust.

Question 71

Fixed trust subject to a condition (gift subject to a condition) Essential Test:

Answer 71

For fixed trusts subject to a condition, the Re Allen ‘one person test’ applies. This means that the condition must be clear enough to identify at least one beneficiary who satisfies the condition.

Question 72

Conceptual Certainty: A condition precedent

Answer 72

A condition precedent (a condition that must be met before the trust takes effect) does not need to be conceptually certain

Question 73

Conceptual Certainty: condition subsequent

Answer 73

Re Tuck’s Settlement (per Lord Denning) is referenced, where a condition subsequent could be invalid if it’s too vague or unclear.

Question 74

Re Tuck’s Settlement

Answer 74

Re Tuck’s Settlement, the trust's validity was upheld because the condition (who qualifies as an approved wife) was delegated to a third party, the Chief Rabbi, thus addressing the potential conceptual uncertainty. If the condition had been too vague without a means to clarify it, the trust could have been void. Lord Denning’s view, therefore, is that delegation can cure vagueness, but the delegation itself is only valid if the condition is still workable and can be determined with reasonable clarity.

Question 75

Fixed trust subject to a condition (gift subject to a condition) Evidential Certainty:

Answer 75

Not applicable

Question 76

Fixed trust subject to a condition (gift subject to a condition) Ascertainability:

Answer 76

Not applicable

Question 77

Fixed trust subject to a condition (gift subject to a condition) Administrative Unworkability:

Answer 77

Not applicable

Question 78

Fixed trust subject to a condition (gift subject to a condition) Capriciousness:

Answer 78

If the condition is capricious (irrational or unreasonable), it can invalidate the condition and make the trust void.

Question 79

Discretionary trust Essential test

Answer 79

McPhail v Doulton (1971) Any given postulant test – is or is not test Can it be said with certainty whether this individual is or is not a member of the class?

Question 80

McPhail v Doulton (1971)

Answer 80

Mr. Baden established a trust fund for employees, ex-employees, and their relatives and dependants. The issue was whether the class of beneficiaries (the objects of the trust) was certain, and what test should apply. The court moved from the "complete list test" (which required all beneficiaries to be identified) to the "any given postulant" test. Lord Wilberforce stated that the trust is valid if it can be said with certainty whether any individual is or is not a member of the class of beneficiaries. This test allows flexibility in identifying beneficiaries, as long as it is clear that any given person can be determined to be part of the class.

Question 81

Re Baden's (No. 2) [1973]

Answer 81

further clarification was made for the "any given postulant" test. the clarification reinforced the idea that the trust could be valid as long as it was possible to determine, with certainty, whether a person qualified as a beneficiary, but it also required that the criteria for membership in the class must be clear and workable.

Question 82

Discretionary trust Conceptual certainty

Answer 82

Re Baden's (No. 2) [1973] “Dependents”: Those wholly or partly financially dependent on another. “Relatives”: * Sachs & Megaw LJJ: Descendants of a common ancestor (broad definition). * Stamp LJ: Next of kin or nearest blood relations (narrow definition).

Question 83

R v District Auditor, ex p West Yorkshire MCC

Answer 83

the court held that the phrase “an inhabitant of West Yorkshire” was conceptually certain

Question 84

Re Tuck’s Settlement Trusts

Answer 84

the court held that the phrase “being of Jewish blood” was conceptually certain.

Question 85

Discretionary trust Evidential certainty

Answer 85

Re Baden’s (No. 2) [1973] The court agreed on the outcome but used different approaches to define evidential certainty: * Stamp LJ: Strict approach – Beneficiaries must be clearly identifiable. * Sachs LJ: Question of fact – The burden is on individuals to prove they are within the class. * Megaw LJ: Substantial number – The trust is valid if a substantial number of beneficiaries can be identified.

Question 86

Virgo’s Opinion on Re Baden’s (No. 2) [1973]

Answer 86

* Prefers Sachs LJ’s approach as it respects the settlor’s intention by placing the burden of proof on beneficiaries. * Acknowledges Stamp LJ’s strict approach as more consistent with Lord Wilberforce’s judgment in McPhail v Doulton.

Question 87

Discretionary trust Size of the class McPhail v Doulton [1970]:

Answer 87

The court noted that if the class of beneficiaries is defined too broadly, it may be unworkable. An example given was "all the residents of Greater London," which was too wide to form a valid class.

Question 88

Discretionary trust Size of the class R v District Auditor, ex p West Yorkshire MCC:

Answer 88

The trust was for "any, some, or all of the inhabitants of the county of West Yorkshire" (around 2.5 million people). Although the class was conceptually certain, its size made it impossible for the trustees to effectively manage the trust, rendering it unworkable.

Question 89

Discretionary trust Capriciousness Re Manisty’s Settlement [1974] (obiter):

Answer 89

Lord Denning, in obiter, suggested that if the settlor’s terms were too vague and lacked a sensible link to the beneficiaries (e.g., a random group with no discernible connection to the settlor), it could indicate capriciousness. No discretionary trust has been invalidated purely based on capriciousness yet.

Question 90

Power of appointment / Fiduciary power Essential test

Answer 90

Re Gulbenkian’s Settlements Mr. Gulbenkian gave trustees discretion to distribute property to his son, wife, children, remoter issue, or anyone who employed him or with whom he resided. The issue was what test should be applied to the powers. The House of Lords applied the "is/is not" test from Re Gestetner Settlement, which determines whether it can be said with certainty whether any given individual is part of the class.

Question 91

Re Gestetner Settlement

Answer 91

is/is not" test, which determines whether it can be said with certainty whether any given individual is part of the class.

Question 92

Power of appointment / Fiduciary power Conceptual certainty

Answer 92

Re Gulbenkian the court held that the term "residing" was conceptually certain because it could be objectively determined whether a person met the description

Question 93

Power of appointment / Fiduciary power Evidential certainty (?)

Answer 93

Virgo the same evidential certainty test applies to fiduciary powers as to discretionary trusts, meaning that the class of beneficiaries must be identifiable with sufficient certainty, and any evidence to prove membership must be clear.

Question 94

Power of appointment / Fiduciary power Size of the class (AW)

Answer 94

Re Manisty’s Settlement Re Beatty Re Hay’s Settlement Fiduciary powers generally cannot be defeated due to the size of the class. This is because fiduciary powers are permissive, meaning the trustee has discretion over the distribution of property, and the size of the class doesn't necessarily invalidate the power.

Question 95

Blausten v IRC

Answer 95

Buckley LJ suggested obiter that a very large class might invalidate a fiduciary power if it becomes administratively unworkable

Question 96

Power of appointment / Fiduciary power Capriciousness

Answer 96

Re Hay's Settlement Trusts Megarry VC confirmed that the power must not be senseless.

Question 97

Re Coxen Re Wright’s Will Trusts Re Leek

Answer 97

The court found that a trustee acting as an arbiter was an excessive delegation of power, preventing the court from exercising its jurisdiction.

Question 98

Re Tuck’s Settlement Trusts [1978]

Answer 98

The trust required the beneficiary to be of the Jewish faith and married to an “approved wife”. Any disputes were to be resolved by the Chief Rabbi. * Lord Denning: The Chief Rabbi could resolve both conceptual and evidential uncertainty. * Eveleigh LJ: The Rabbi’s role was part of ensuring conceptual certainty by defining who qualifies as being of the Jewish faith.

Question 99

Section 21 of the Administration of Justice Act 1982

Answer 99

Judges must disregard extrinsic evidence when interpreting a will, except where s.21 applies. Extrinsic evidence is allowed if: 1. The wording is meaningless. 2. The language is ambiguous. 3. Contextual evidence reveals hidden ambiguity.

Question 100

Section 436 of the Insolvency Act 1986.

Answer 100

Definition of the property

Question 101

Sale of Goods (Amendment) Act 1995

Answer 101

buyers of unascertained goods in a bulk now acquire property rights in the bulk without needing segregation.