Three Certainties

Intention
1. Import obligation
  1. Comiskey - "in full confidence that she will devise to one or more of my nieces". 2nd part clearly mandatory
    1. But...
      1. Re Adams - "in full confidence" not sufficient.
2. "Should"?
  1. Wallbank - word merely precatry
Subject matter
1. Tangiable & Intangiable
  1. London Wine - tangible but no segregation of appropriation
  2. Hunter - intangiable (shares) therefore no need for segregation
2. Ambiguity
  1. Palmer - "bulk of my estate"
    1. Re Golay - "reasonable income" was still valid
Objects
1. Fixed Trust
  1. IRC - complete ascertain ability test
2. Discretionary Trust
  1. McPhail - Test same as MP. Wilberforce: Conceptual, Evidential, Administrative Unworkability
    1. Re Baden - Stamp LJ set requirements to determine conceptual certainty. E.g. certainty if we describe next of kin within statutory definition.
      1. 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
  2. Duties
    1. Survey the class, consider and appoint (act in good faith, no improper selection, no capricious, no conflict).
3. Mere Power
  1. Re Gestener - can it be said of any given person that he or she is or is not object of the power? (objective test)
    1. Re Manisty - capricious = void
  2. Duties
    1. Re Hay - consider whether to exercise, survey range of objects, consider suitability of appointments (fiduciary)
      1. Bare power does not need to be considered. No duties in terms of exercising power. See Mettoy v Pension Fund

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Three Certainties

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	Created by reashton about 11 years ago