MCPHAIL V DOULTON ESSAY

The Three Certainties in Application The three conditions stated above are cumulative and unless they are all satisfied no effective trust can come into being. Emery provides an excellent discussion of these issues see, chapter 3 key debates. In such case, the relevant object will be a designated purpose chosen with the intention of benefitting society or some part of it. Resources Annotated sample answers Further reading Glossary Interactive flashcard cases Key facts checklists Multiple choice questions Outline answers to essay questions Annotated case reading Bonus material Diagnostic test Looking for extra marks Browse: 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. 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.

Resources Annotated sample answers Further reading Glossary Interactive flashcard cases Key facts checklists Multiple choice questions Outline answers to essay questions Annotated case reading Bonus material Diagnostic test Looking for extra marks Browse: In most cases, this has ensured a steady and consistent interpretation of what is to be classified as conceptually certain. A critical analysis of recent developments on the Certainty of Objects in the Law of Trusts. Medicine essays Miscellaneous essays Psychology essays Religious studies essays Science essays Sociology essays Essays menu. An illustration of how the courts enforced the complete list test was demonstrated in Re Eden. 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. Administratively unworkable A trust may be rendered void if it is so wide that it is administratively unworkable.

mcphail v doulton essay

Reflect on the reasons for changing the test for certainty of objects for discretionary trusts — do the benefits outweigh any problems? In his judgment, Stamp LJ takes a literal approach in interpreting the given postulant test. Essay UK – http: Beneficiaries must be identified with sufficient clarity that they mcphwil be ascertained with certainty. J promotes a much more flexible test to ascertain the beneficiaries to the trust.

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Perhaps expansion on case law in this area will one day bring more opinions to further shed light on views more certain in reaching a more focused test. 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.

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mcphail v doulton essay

In such case, the trustee may face difficulties in distributing the trust without breaching his duties. Help Center Find new research papers in: According to Sachs, the onus is on the claimant to prove whether mclhail 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.

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.

mcphail v doulton essay

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.

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. The current approach to doulhon of objects in discretionary trusts creates more uncertainty than doulon resolves.

Defining the Three Certainties In the landmark case of Knight v Knight Lord Langdale set out the three certainties necessary to constitute a legally sound private express trust settlement and in so doing he succinctly defined the expectations the law imposes on the settlor: In so doing he secured fair play between the parties in most of his rulings see for example DHN Foods Distributors Ltd v London Borough of Tower Hamletsalthough his critics are always quick to point to the fact that his judgments introduced a degree uncertainty and unpredictability, if not confusion, into the law Adams v Cape Industries plc Accounting essays Architecture essays Business essays Coursework Economics essays Education essays Engineering essays English language essays English literature essays.

Log In Sign Up. Thus the burden is on the claimant to adduce some evidence which proves that they fall within that definition.

All of these issues are doulyon particular importance to trustees, who may be held liable for breach of trust if they distribute property incorrectly. Lord Denning was a brilliant but controversial judge, rising to Master of the Rolls in the Court of Appeal mcphhail the latter half of the twentieth century.

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However, as it will be distinguished below, determining certainty of objects in discretionary trusts has proved to be more contentious. It would be of the duty of the trustee to decide whether to distribute the subject matter.

Answering a Question on McPhail v Doulton

This issue highlights further uncertainty in the current approach to certainty of objects for discretionary trusts. In this instance, one must consider the individual trust at hand in order to manoeuvre the gaps untouched by the class test for discretionary trusts to show certainty. Certainty as to the persons or objects who are to benefit.

The trust is a creature of essaay and as a consequence it is submitted that it is perhaps more appropriate to allow the interplay of emotion and pragmatism in interpreting and applying trust law than in certain other circumstances and legal contexts.

Discuss and illustrate the central idea of ‘conceptual certainty’. Resources Annotated sample answers Further reading Glossary Interactive flashcard cases Key facts checklists Multiple choice questions Outline answers to essay questions Annotated case reading Bonus material Diagnostic test Looking for extra marks Browse: Indeed, doultkn felt that in many cases, the douton 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.

Chapter 3: Outline answers to essay questions

Often judges are in the difficult situation of trying to second guess the wishes of a deceased party, and to adhere fairly to his wishes. 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.

Although this addition for the purpose of remedy shows practicality of delivery, it seems that the most basic of requirements is nonetheless unfulfilled. These three certainties were most notably set out by Lord Langdale in Knight v Knight where it became recognised mcphali a trust will only be binding where they were all satisfied. Initially, there was no distinction between fixed trusts and 17 Ibid,