2458048
Description
Mind Map by harrishyatt, updated more than 1 year ago
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Created by harrishyatt
about 9 years ago
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Re Gulbenkian Settlement Trust (No1) L Upjohn
- Issue
- whether that clause is void of uncertainty
- whether that clause is void of uncertainty
- Decision
- clause 2i
- it is a mere power/bare power/collateral power
- it is not a trust power
- so trustees have no "duty to exercise it"
- so trustees have no "duty to exercise it"
- it is a mere power/bare power/collateral power
- Test for validity of mere power when class of appointees unascertainable
- provided valid gift over or trust in default of appointment
- valid if evidentially certain - is or not part of class
- this clause satisfies the test
- "residing"
- persons "with whom" the son is residing
- persons "in whose company" the son is residing
- persons "under whose care and control" the son is residing
- "residing"
- this clause satisfies the test
- irrelevant whether ascertain everyone/complete list
- provided valid gift over or trust in default of appointment
- clause 2i
- Obiter
- construction
- court first apply literal
- if literal makes no sense use common sense to make sense of it.
- understand intentions
- this determines a mere power or trust power
- court first apply literal
- the principle
- donor must make sufficiently plain as to the objects of his trust
- court cannot give effect via misinterpreting intentions by dividing fund merely among those present
- donor must make sufficiently plain as to the objects of his trust
- construction
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