A capricious trust is characterised by the careless and irrational whims of the settlor often playing the giddy goat. The three conditions stated above are cumulative and unless they are all satisfied no effective trust can come into being. Pragmatism and emotion do not always influence the court. How is it distinguished from evidential certainty? Here, the trust instrument sets out the individual interest that each beneficiary has in the trust property, and in order for the property to be distributed correctly, the trustee must be able to create a complete list of the entitled beneficiaries. Conceptual Uncertainty Determining conceptual uncertainty is generally a question of law, and as such, it is up to the courts to exercise a common sense approach in its application. However, because the term has no specific technical meaning Cross J ruled that the clause could not be delineated with sufficient precision and therefore that it could not be upheld.

Abass, Equity and Trusts: Hayton The Law of Trusts. In essence, there seems to have been a positive development on this area of law over the last half century, the existence of fixed trusts has shown certainty and workability to achieve an equitable result. Reflect on the reasons for changing the test for certainty of objects for discretionary trusts — do the benefits outweigh any problems? However, it has been proven that the simplicity of application surrounding fixed trusts is not shared in respect to discretionary trusts. All sections of the paper that use quotes or describe a argument or concept developed by another author have been referenced, including all secondary literature used, to show that this material has been adopted to support my essay. Discuss and illustrate the central idea of ‘conceptual certainty’.

mcphail v doulton essay

The only criticism to this approach however, is that it could potentially result in a single or small class of beneficiaries, which is an outcome the settlor may not have intended. As the objects of a trust are strictly fixed from the outset, the trustee does not have any discretion in who receives the trust property or in the way that it is distributed.

The court takes a very strict approach in applying this — if a trustee is unable to draw a complete list of objects at the time of distribution, the complete list test will not be satisfied and the trust will be invalidated.

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This approach by Sachs LJ has proved to be the most pragmatic, as it places the evidential burden on the prospective beneficiaries whilst removing the potential of invalidating the trust unnecessarily. However, trust law has now provided trustees with various sensible mechanisms to assist them in this type of situation — for example, such as obtaining directions from the court under the Civil Procedure Rules, or advertising for claimants in the London Gazette and giving potential beneficiaries constructive notice of their entitlement.


There are UK writers just like me on hand, waiting to help you. Evidential Uncertainty Evidential uncertainty is when the beneficiaries in question are identified yet cannot be verified due to lack or uncertainty of evidence, this is a question of fact and in most cases may not invalidate the test as the trustee need only be assured that the recipient would be in benefit of the trust.

According to Sachs LJ, the crucial question is to first establish whether a class is conceptually certain. 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. Emery provides an excellent discussion of these issues see, chapter 3 key debates.

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. On the other hand, a problem which warranted slight caution in the application of the complete list test relates to the whereabouts of beneficiaries, and whether, if indeed, they are even still alive.

(DOC) Equity & Trusts – Certainty of Objects | R.A. Al Bahr –

The three certainties are essential conditions dpulton the creation of a legally recognised and enforceable trust.

The certainties must at least be respected so as to define the basic parameters of the trust. Doultin Uncertainty Determining conceptual uncertainty is generally a question of law, and as such, it is up to the courts to exercise a common sense approach in its application. This would also fall outside the scope of the court due to the maxims of equity in that they will not perfect an imperfect gift.

According to Sachs, the onus is on the claimant to prove whether he falls in the class of beneficiaries, this counteracts the challenging task of how a trustee is to prove a negative by placing the burden of proof on the claimant. These three certainties were most notably set out by Lord Langdale in Knight v Knight where it became recognised that a trust will only be binding where they were all satisfied.

The certainties protect the interests of the settlor and beneficiaries, inform the trustees as to the precise extent of their obligations and permit the court to exercise control over what has long been an important legal mechanism. Similarly, if the defining concept is unclear, leaving it to the trustee to define will not necessarily save the trust from becoming invalidated. 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 He delivered many judgments grounded more firmly on pragmatism and emotion than on precedent.


Chapter 3: Outline answers to essay questions

Conclustion Throughout this analysis the underlying theme in the distribution of these trusts seems to lean towards the interests of the potential beneficiaries rather than the intentions of the settlor. What are the Options for Personal Representatives?

Essaay trusts 12 Re Eden [] 2 All E. A critical analysis of recent developments on the Certainty of Objects in the Law of Trusts. It is probably true to assert that, to some extent, pragmatism and emotion have indeed distorted the court’s ability edsay interpret consistently the three certainties required for the creation of a trust. A fixed trust is easily identifiable through its limited leeway in allowing the trustee to distribute the subject matter of the 5 C.

Indeed, he felt that in many cases, the settlor himself would not intend on equal division amongst many beneficiaries as the trust property would then become so thinly disbursed, it would essentially render the trust worthless. The trustee may see sense in having a comprehensive list allowing him to assess beneficiaries more fairly. How is it distinguished from evidential certainty?

Lord Denning was a brilliant but controversial judge, rising to Master of the Rolls in the Court of Appeal in the latter half of the twentieth century.

mcphail v doulton essay

This proves to be rather problematic and inconvenient as the basis of this test is to have a comprehensive list of the identified beneficiaries, thus if they are unattainable than the main requirement of this test fails. In order to assess this, development in case law over the last half century have brought to use tests for the purpose of ascertaining certainty of the object.