Three Certainties

Three Certainties

1. Intention

   • Import obligation
     • Comiskey - "in full confidence that she will devise to one or more of my nieces". 2nd part clearly mandatory
       • But...
         • Re Adams - "in full confidence" not sufficient.
   • "Should"?
     • Wallbank - word merely precatry

2. Subject matter

   • Tangiable & Intangiable
     • London Wine - tangible but no segregation of appropriation
     • Hunter - intangiable (shares) therefore no need for segregation
   • Ambiguity
     • Palmer - "bulk of my estate"
       • Re Golay - "reasonable income" was still valid

3. Objects

   • Fixed Trust
     • IRC - complete ascertain ability test
   • Discretionary Trust
     • McPhail - Test same as MP. Wilberforce: Conceptual, Evidential, Administrative Unworkability
       • Re Baden - Stamp LJ set requirements to determine conceptual certainty. E.g. certainty if we describe next of kin within statutory definition.
         • Re Tuck - third party power to decide? should stay within juris or the court
           • Individual gifts to persons answering a description - Re Barlow it is sufficient if there is at least one person who fits description
     • Duties
       • Survey the class, consider and appoint (act in good faith, no improper selection, no capricious, no conflict).
   • Mere Power
     • Re Gestener - can it be said of any given person that he or she is or is not object of the power? (objective test)
       • Re Manisty - capricious = void
     • Duties
       • Re Hay - consider whether to exercise, survey range of objects, consider suitability of appointments (fiduciary)
         • Bare power does not need to be considered. No duties in terms of exercising power. See Mettoy v Pension Fund