Why there is a need to distinguish between fixed trust and a discretionary trust in discussing certainty of

object and explain the nature of these two trusts?

Fixed trust: trust that are created by the settlor in which the beneficiaries and their interest are
ascertained or ascertainable on the date of the creation.

Discretionary trust: these are express trust whereby the settlor has imposed an obligation on the
trustees to exercise their discretion in favor of class of object

Firstly define certainty of object

Test for certainty of object

Fixed trust: it can be seen in the case

IRC v Broadway Cottages Trust where
Wynn- Parry J held that a trustee was
required to draw up a complete list of
all the beneficiaries

In OT Computers Ltd v First National

Tricity Finance Ltd, Phumprey J
confirmed the complete list test for
fixed trust. The test for certainty of
objects for fixed trust is therefore
described as the complete list test.
Given the nature of fixed trust, the
requirement that a trustee must able
to draw up a complete list of
beneficiaries is logical.

Example: A trust which requires equal distribution amongst the nieces of a settlor\

Test for Certainty of object

Discretionary trust: a discretionary trust confers upon the trustee discretion in respect of
distribution of the trust fund. The application of discretionary trust can be seen in McPhail v Doulton.
The facts if this case is concerned a deed of July 1941 which purported to establish a discretionary trust
in favour of the officers and employees of a company. Clause 9 of the deed provided that ‘the trustees
shall apply the net income of the fund in making at their absolute discretion grants to or for the benefit
of any of the officers and employees or ex officers or ex-employees of the company or to any relatives or
dependents of such person in such amount at such times… as they think fit’. The question in the House
of Lords was which test should be applied to determine whether the trust was valid or valid for
uncertainty of objects.
Presentation.
Powers here referring to powers of appointment. Under a trust where trustees given powers to for
example advance sums of money to beneficiary, power to appoint another person as the owner of
property and so on so forth

Ill give you example how power of appointment operate.

John cannot decide te proportion in which her property should be divided among children, he gives a
power to sarah