McPhail v Doulton L Hodson

McPhail v Doulton L Hodson

1. Issue

   • is clause 9a a trust or a power

2. Decision

   • It is a trust
     • primary trust expressed in its mandatory form
   • IRC test for the validity of a trust
     • sound reasoning
       • a mere power is a different animal from a trust
   • the same test for trust and power
     • it avoids fine distinctions between the two
     • in certain cases courts can only authorise equal shares
       • absurd results
       • strict test open to serious criticism
     • disability for courts to exercise discretion (IRC)
     • Difficulties of fact to ascertain bene e.g. gone abroad

3. Obiter

   • IRC
     • strict adherence to requirement of certainty
       • from narrow distintion
         • for a trust where certainty is required
         • for a power less certainty required
   • the distinction
     • there is a duty in a trust on the trustees
       • courts can control the exercise of duty
     • In powers, objects have no right to complain