Flashcards
Certainty of Objects
Flashcards do conjunto (30)
- 1What principle was stated in Morice v Bishop of Durham?There must be someone in whose favour the court can decree performance.
- 2What is a fixed trust?A trust which gives the trustee no discretion as to how to perform their duties.
- 3What is necessary in order to establish certainty of subject under a fixed trust? - Which case established this?Must be able to compile a complete list of beneficiaries.
- IRC v Broadway Cottages. - 4What is a 'mere power'? - Do they have an obligation to exercise this power?Gives the holder the ability to exercise a power.
- No. - 5What is the test for certainty of objects in relation to fiduciary mere powers? - What case established this?Is or is not test.
- Re Gulbenkian. - 6What what was the question to be answered in Re Gulbenkian?Whether an expression in will was too uncertain as it did not define the class of objects of the trust sufficiently.
- 7What test did Lord Upjohn approve in Re Gulbenkian? - How was Re Gulbenkian decided?Test outlined in Re Gestetner that it must be possible to know whether 'any given postulant is or is not' within the class of beneficiaries.
- Held the trust was valid by applying this test. - 8What happens if there is one person to whom the trustees cannot decide whether or not they fall within the class?Trust is invalid.
- 9What happened in Re Barlow? - How would this have been held under the Gulbenkian test? - Why?Woman provided in her will that for any 'family or friends' to purchase paintings from her at a low price.
- Void.
- Uncertainty of objects. - 10Which judge held what, on how many bases?Lord Upjohn held the will was valid on 2 bases.
- 11What were the two bases?1. Bequests was construed as intending to make gifts, therefore the law of trusts would not apply to it.
2. On the facts of the case, specifically proposed distribution of gifts was reasonable. - 12What did construing the will as an intention to make gifts mean?The is or is not test did not apply.
- 13What is the leading case in relation to certainty of objects under a discretionary trust power?McPhail v Doulton
- 14What happened in MacPhail v Doulton?Uncertainty as to who was a "relative".
- 15What did the majority of the HoL do in McPhail v Doulton?Accept that the 'is or is not' test applies to discretionary trusts.
- 16What did Lord Wilberforce state in McPhail v Doulton?"the trust is valid if it can be said with certainty that any given individual is or is not a member of the class".
- 17Why was the decision in Re Baden (No 2) interesting? - What was the issue?All three HoL gave separate judgements with separate views.
- Certainty of "relative". - 18Why was Sach LJ particular angry about this case?- It had made its way around the courts for 12 years.
- 19How did LJ Sachs approach it?Followed the 'is or is not' test but flipped the burden of proof on the postulants.
- Made postulants prove they fell within the class rather than the trustee proving they did or did not. - 20How did Megaw LJ approach it?Returned to logic in Re Allen in seeking to validate those trusts in which there are a substantial number of postulants about whom you can be certain.
- 21How did Stamp LJ approach it?Definition of 'relative' should be restricted to 'statutory next of kin'.
- 22What is a personal power? - Does it impose obligations?A power that is not a fiduciary power.
- No. - 23Is a personal power void on grounds of uncertainty of object? - Authority?No.
- Re Hay's Settlement. - 24What was the uncertainty in Re Tuck's? - How was this resolved? - What was held?Money was left in a trust for the testator's issue who married into 'the Jewish faith'.
- It was possible to determine who was in the Jewish faith by asking the Chief Rabbi as membership of the faith is a matter of Jewish law.
- No uncertainty. - 25What ware the 4 forms of uncertainty?Conceptual.
Evidential.
Ascertain-ability.
Administrative workability. - 26What is the first form?Precise defintion of words.
- 27Precise defintion of words.Inability of parties to provide whether they do or do not fall within the class.
- 28What is the third form? - Is this being difficult fatal? - What will the courts grant if something can be demonstrated?Refers to the ability of the trustees to track down all of the class of beneficiaries.
- No.
- If it can be demonstrated that the trustee took reasonable steps to identify all members then the courts will order that the property be divided amongst the ascertained objects. - 29What is the fourth form? - What happens if its impossible?Refers to the feasability of the trustees being able to carry out the settlor's wishes.
- Trust is void. - 30What are the four stages to apply in answering a problem question in this area?Identify type of trust or power.
Identify test which applies.
Apply means of eluding test.
Consider any exceptions to that test for that type of trust or power.
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- Old FlashCards sobre Certainty of Objects, criado por Jordan Quigley em 02-10-2018.
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- Jordan Quigley
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