Instead, we are faced with a number of interoperations and tests, which although serve to provide flexibility, they in essence make this area of law inconsistent and difficult to ascertain the intention of the settlor. Pragmatism and emotion have distorted the court’s ability to interpret consistently the three certainties required for the creation of a trusts’. It is probably true to assert that, to some extent, pragmatism and emotion have indeed distorted the court’s ability to interpret consistently the three certainties required for the creation of a trust. Accounting essays Architecture essays Business essays Coursework Economics essays Education essays Engineering essays English language essays English literature essays. The current approach to certainty of objects in discretionary trusts creates more uncertainty than it resolves. In simple terms consistency is important in the context of applying the law of the three certainties in trust creation, but so is flexibility.
Thus due to the binding nature of trusts and the enforceable obligations they have on trustees, it is crucial to clearly identify the trust objects. The test is the same as for fiduciary powers Re Gulbenkian’s Settlement. Fixed Trusts Fixed trusts have long been taken in a rather strict light due to their requirement to have the beneficiaries to be ascertainable or distinguishable. What are the Options for Personal Representatives? A critical analysis of recent developments on the Certainty of Objects in the Law of Trusts.
The three certainties are essential conditions for the creation of essau legally recognised and enforceable trust. Discretionary Trusts — The Class Test A discretionary trust reflects the discretion exercised by the trustees as to who will benefit from the trust and how the trust property will be distributed. Thus due to the binding nature of trusts and the enforceable obligations they have on trustees, it is crucial to clearly identify the trust objects.
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While the new test in McPhail v Doulton allowed more discretionary trusts to be upheld, the case law in this area remains uncertain and confusing. It is submitted that this suggests that there are boundaries to pragmatic intervention where at least the intention of the settlor is clear.
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Some difficulty has been faced practically in the use off fixed trusts, Re Benjamin held that the trustee has a choice to make if a beneficiary is identified yet unattainable due to reasons such as death or inability to find the person Discretionary trusts 12 Re Eden  2 All E. The test is the same as for fiduciary powers Re Gulbenkian’s Settlement.
Discuss and illustrate the central idea of ‘conceptual certainty’.
The creation of a trusts – Free Law Essay – Essay UK
The certainties must at least be respected so as to define the basic parameters of the trust. In order to assess this, development in case law over esway last half century have brought to use tests for the purpose of ascertaining certainty of the object. Reflect on the reasons for changing the test for certainty of objects for discretionary trusts — do the benefits outweigh any problems?
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However, with all things considered, it does seem that the developments in the law over the last half century have been pivotal in the administration of trusts by assisting the courts, trustees and legal representatives alike. It is clearly necessary to ensure that trust property can be specified with precision and dealt with precisely in accordance with the intentions of the settlor.
Furthermore the certainties are an important safeguard against the risk of fraud, which is ever present in substantial property transfers. Enter the email address you signed up with and we’ll email you a reset link.
Answering a Question on McPhail v Doulton – Premier Law Essays | Writing Service
Although it is evidently clear that the law relating to fixed trusts is far more consistent than in discretionary trusts, liberal and lenient interpretation has resulted in an equally positive and pragmatic approach to the law in this area. Re Coxen16 confirms that the trust is not necessarily invalidated due to the lack of evidence. Fixed Trusts — The Complete List Test A stricter approach usually applies to fixed trusts where a greater degree of certainty is required than for discretionary trusts.
In such case, the trustee may face difficulties in distributing the trust without breaching his duties. Pragmatism is also an essential component in the field of discretionary trusts, where there may be an attempt to enforce open-ended or amorphous obligations.
It will conclude upon its findings by critically evaluating on whether those developments have had a positive or negative impact on the law.
The creation of a trusts Pragmatism and emotion have distorted the court’s ability to interpret consistently the three certainties required for the creation of a trusts’. This method although the most certain form of identifying the beneficiaries, may prove to be exhaustive and costly to achieve.
R v District Auditor Ex p. It is submitted therefore that a certain degree of dlulton is a necessary and welcome characteristic of the case-based regime that defines the application of the law of trusts. That said, whether by words written or oral, or inferred by conduct, the intention of the settlor that a binding fiduciary obligation and not just a moral wish is to be imposed on the trustees must be clear, and unambiguous.
Conclusion As demonstrated, the courts have developed an extensive range of cases to illustrate how the tests for certainty of objects have applied in practice.
Certainty as to the persons or objects who are to benefit. Pragmatism and the natural justice derived from precedents influenced by factors that can be broadly grouped as mcphaill are celebrated emblems of equity and in the opinion of this commentator, long may they remain so. These requirements are known as the so-called three certainties — certainty of intention, certainty of subject matter, and certainty of objects.