The Three Certainties II

SEMESTER A
EQUITY & TRUSTS
‘Somebody’ in whose favour the court
can decree

 Morice v. Bishop of Durham (1804) 9 Ves 399

 Sir William Grant “Every trust must have a
definite object. There must be somebody in
whose favour the Court can decree
performance”
Certainty of Objects
 The beneficiaries of a trust are called its objects.
 The certainty of objects is perhaps the most complex.
 The rule for certainty of objects has seen a
liberalisation throughout the later half of the 20th
century, with the innovation of the discretionary trust.
 It is also necessary to consider the closely related
concept of a power of appointment, for which there is
also a rule for certainty of objects.
 Powers of appointment can be difficult to distinguish
from discretionary trusts and the difficulty is
exacerbated by inconsistent and ambiguous
terminology.
 Tests & Considerations
 Virgo sets out six matters for consideration for
certainty of objects:
(1) The essential test of certainty;
(2) Conceptual certainty (i.e. whether the objects have
been defined with sufficient certainty);
(3) Evidential certainty (i.e. whether or not a person(s)
meet the description in (2));
(4) Ascertainability (i.e. whether person(s) meeting
(3) can be located);
(5) Administrative workability; and
(6) Capriciousness.
Fixed Trusts

 Historically, all trusts were fixed trusts.

 In a fixed trust, the trustees are required to
distribute the trust property to beneficiaries
in the proportions specified in the trust.
 The trustees had no discretion as to either
(1)beneficiaries or (2) the proportion of
their beneficial interest.
 Accordingly, in order for the trust to be
valid, it must be possible to identify all the
beneficiaries.
 Fixed Trusts
• This is not a problem if the beneficiaries are specifically
named (for Alison, Bill, Clement, & Diana) but may be
an issue if the beneficiaries are only named as a class
(for all office staff of City U’s School of Law in 2023).
Fixed Trusts
 The test for (fixed) trusts is the so-called
“complete list test”.
A list of all the beneficiaries must be
compilable at the time of distribution.
 Irrelevant
that such a list cannot be
drawn up at the time when the trust is
created.
 However, if it is not possible to draw up
a complete list at the time of
distribution, then the trust is void ab
initio.
Fixed Trusts
 The strictness of the test, means to be able to draw up
a complete list, both conceptual certainty and
evidential certainty must be satisfied.
 i.e a fixed trust for the settlor’s friends will be void
since it is impossible to draw up a complete list of
“friends” since the definition of the objects (i.e.
settlor’s friends) is conceptually uncertain.
 Likewise, a fixed trust for all employees of the
Department of Law of the City Polytechnic of Hong
Kong in 1990 may be void if, owing to poor record-
keeping, it becomes impossible to draw up a
complete list of beneficiaries.
 Here though the failure is the result of evidential
uncertainty.
 Fixed Trusts
 The ascertainability of particular beneficiaries
is not required for the validity of the trust.
 Distributionswill be made to those that can
be located and the shares of any beneficiaries
who cannot be located will be paid into court.
 The requirements of administrative
workability and capriciousness arose in
relation to discretionary trusts and fiduciary
powers of appointment respectively and are
not thought to be applicable to fixed trusts.
Fixed Trusts
 It is thus believed that the “complete list
test” for fixed trust requires compliance
with the following requirements:
Conceptual Certainty Y
Evidential Certainty Y
Ascertainability N
Administrative Unworkability N
Capriciousness N
Examples

HKD$100,000 on trust for my nephews

and nieces in equal shares
Examples

HKD$100,000 on trust for my brother

for life, remainder to any children he
may have
Nature of the beneficiaries’ interests:

 Note the possibility of rearrangement of beneficial

interests by beneficiaries if all adults and sound legal
capacity, under
 Saunders v. Vautier (1841) Cr & Ph 240

 (Arguably only applicable to Fixed Trusts)

 Conditional Gift
 All gifts, can be subjected to conditions imposed
by the donor/settlor.
 Conditions may be (1) conditions precedent or
(2) conditions subsequent.
 A condition precedent is one which must be
satisfied before an object qualifies for the gift.
 A condition subsequent is one which, if satisfied,
will defeat the donee’s/beneficiary’s interest.
 Whether a condition is a condition precedent or a
condition subsequent is a question of
construction.
 Conditions Subsequent
 Conditions subsequent are subjected to a stricter
test of certainty: Blathwayt v Lord Cawley [1976]
AC 397.
 Conditions subsequent are only valid if it can be
determined from the outset that the exact event
will result in the defeasance of the beneficiary’s
interest.
 As Lord Cranworth explained in Clavering v
Ellison (1859) 7 HLC 707:
“That condition must be such that the court can
see from the beginning, precisely and distinctly,
upon the happening of what event it was that the
preceding vested estate was to determine.”
 Conditions Subsequent
 Generally, it is thought that conditions subsequent must
be conceptually certain.
 Hence, in Clayton v Ramsden [1943] AC 320, a
condition subsequent if a beneficiary were to marry a
“person not of the Jewish faith” was void for
uncertainty.
 Conditions Subsequent
 In Re Jones [1953] 1 Ch 125, a condition subsequent
applying if the beneficiary had a social or other
relationship with a named person was struck down by
Danckwerts J:
“I am of opinion that ‘relationship’ means simply the
existence of a relative state of facts between the two
persons named or, at any rate, that that situation may be
included in the words. Therefore, it seems to me that it
may include all kinds of things: for instance, such
things as being members of the same congregation,
members of the same bus queue, citizens of the same
State and all manner of situations which merely denote
a passive existence of facts, and that the provision in
this will is not, therefore, merely a prohibition against
active steps being taken on the part of [the daughter] in
regard to the person in question.”
 Conditions Subsequent
 However, more recent cases seem to take a more lenient approach
towards uncertainty.

• In Blathwayt v Lord Cawley [1976] AC 397, a

condition subsequent leading to forfeiture if a
beneficiary were to become a Roman Catholic
was held to be sufficiently certain.

Robert Wynter Blathwayt

(1850-1936)
 Conditions Subsequent

 In Re Tepper’s Will Trusts [1087]

Ch 358, beneficiaries were to be
entitled to income from the
testator’s estate when they reached
the age of 25 provided they “did not
marry outside of the Jewish faith”.
 Although Scott J accepted that
“Jewish faith” of itself was
uncertain, he was prepared to cure
the uncertainty by construing the
relevant clause as referring to what
the “testator sitting in his armchair”
meant by “the Jewish faith”.
 Conditions Subsequent
 Evidential certainty is irrelevant for conditions subsequent &
the concept of ascertainability (as applied to a condition) is
meaningless.
 In In re Coxen [1948] Ch 747, Jenkins J explained:
“There is, therefore, nothing in Sifton v Sifton which precludes
me from holding the condition here in question to be a valid
condition, provided I am able to attach a sufficiently definite
meaning to it in the context afforded by the codicil, and …
in deciding whether I am able to do so or not, I must keep in
mind the distinction between uncertainty as to the events
prescribed by the testator as those in which the condition is to
operate (which is, generally speaking, fatal to the validity of
such a condition) and difficulty in ascertaining whether those
events (sufficiently prescribed by the testator as a matter of
definition) have happened or not, which is not necessarily fatal
to such validity.”
 Conditions Subsequent
 The administrative workability and
capriciousness are not relevant to conditions
subsequent.
 The following requirements are thus thought to
be relevant:

Conceptual Certainty Y
Evidential Certainty N
Ascertainability N
Administrative Unworkability N
Capriciousness N
 Conditions Precedent
 Compared to conditions subsequent,
conditions precedent are subject to laxer
scrutiny.
 The locus classicus is Re Barlow’s Will
Trusts [1979] 1 WLR 278, where a testatrix
left some paintings in her will on trust for
sale, but directed her executor to allow any
members of her family or her friends to buy
at an undervalue.
 The concept of friends is clearly
conceptually uncertain because there are
many degrees of friendship.
 Conditions Precedent
 On the facts, Browne-Wilkinson J lay down some minimum
requirements to determine who was entitled to exercise the
option:
“(a) the relationship must have been a long-standing one. (b)
The relationship must have been a social relationship as
opposed to a business or professional relationship. (c)
Although there may have been long periods when
circumstances prevented the testatrix and the applicant from
meeting, when circumstances did permit they must have met
frequently. If in any case the executors entertain any real
doubt whether an applicant qualifies, they can apply to the
court to decide the issue.”

Opinion: because it is an exercise of power not a trust.

 Conditions Precedent
 As Lord Denning MR observed in Re Tuck’s Settlement Trust
[1978] Ch 49 that “[c]onceptual uncertainty may avoid a
condition subsequent, but not a condition precedent.”
 His Lordship criticised the distinction in treatment between
the two types of conditional gifts:
“I fail to see the logic of this distinction. Treating the
problem as one of construction of words, there is no sense in
it. If the words are conceptually uncertain - so as to avoid a
condition subsequent - they are just as conceptually
uncertain in a condition precedent - and should avoid it also.
But it is a distinction authorised by this court in In Re Allen,
Decd [1953] Ch 810 , and acknowledged by Lord
Wilberforce in Blathwayt v Baron Cawley [1976] AC 397,
424-425.”
 Conditions Precedent
 Browne-Wilkinson J’s test in Re Barlow’s Will Trusts,
which his Lordship derived from In Re Allen, Decd:
“This approach to the validity of conditions precedent
must be right. There is no obligation on the trustee to
survey the class, but the onus is placed on the object to
show that they satisfy the condition.”
 Conditions Precedent
 It would appear therefore that all of the relevant
considerations need not be satisfied provided one
person qualifies for the beneficial interest:

Conceptual Certainty N*
Evidential Certainty N*
Ascertainability N
Administrative Unworkability N
Capriciousness N
* As long as there is one person that undoubtedly qualifies.
Example
 I give my collection of wine on trust for sale,
provided any of my friends choose one first.
 Conditions: Public Policy

 Assuming a condition does not fail for uncertainty,

it may nevertheless be challenged on the ground
of public policy.
 Conditions operating as a complete restraint on
the alienation of property are void as contrary to
public policy, as are restraints that are regarded as
equivalent to complete restraints.
 Re Brown [1954] Ch 39, a condition set by a
testator to forfeit the interests given to his four
sons should they mortgage or sell their interest to
anyone other than among their brothers was so
regarded and struck down.
 Conditions: Public Policy
 Conditions designed to encourage divorce or separation are
void: Re Johnson’s Will Trusts [1967] Ch 387; Re Caborne
[1943] Ch 387.
 Conditions restraining marriage are void if the restraint is
total, as for example, was the case in Llloyd v Lloyd (1852)
2 Sim (NS) 255 where a condition subsequent would
operate to divest property on marriage.
 The rules for partial restraints are more complicated,
differing depending on whether the subject matter is
personal property (ecclesiastical courts) or real property
(common law courts).
 A partial restraint is valid for personal property only if an
express gift over is provided.
 Conditions: Public Policy

 Conditions calculated to separate parent and

child are void: Re Boulter [1922] 1 Ch 75.
 Likewise any condition designed to interfere
with the exercise of parental duties: Re
Borwick [1933] Ch 657; Re Sandbrook
[1912] 2 Ch 471.
 Conditions restricting freedom of religion
have never been struck down as being
contrary to public policy.
 Conditions: Public Policy
 In Blathwayt v Lord Cawley [1976] AC 397,
Lord Cross explained:
“..question of public policy,….it does not against
public policy for an adherent of one religion to
distinguish in disposing of his property between
adherents of his faith and those of another. So to
hold would amount to saying that though it is in
order for a man to have a mild preference for
one religion as opposed to another it is
disreputable for him to be convinced of the
importance of holding true religious beliefs and
of the fact that his religious beliefs are the true
 Conditions: Public Policy
 In the same case, Lord Wilberforce remarked:
“I do not doubt that conceptions of public policy should move with the
times and that widely accepted treaties and statutes may point the
direction in which such conceptions, as applied by the courts, ought to
move. It may well be that conditions such as this are, or at least are
becoming, inconsistent with standards now widely accepted. But
acceptance of this does not persuade me that we are justified … in
introducing for the first time a rule of law which would go far beyond the
mere avoidance of discrimination on religious grounds. To do so would
bring about a substantial reduction of another freedom, firmly rooted in
our law, namely that of testamentary disposition. Discrimination is not
the same thing as choice: it operates over a larger and less personal area,
and neither by express provision nor by implication has private selection
yet become a matter of public policy.”
 Conditions: Public Policy
 Tolerance of the freedom to discriminate see Matthew
Harding in “Some Arguments against Discriminatory
Gifts and Trusts” (2011) 31 OJLS 303.
 Harding: non-discrimination operates at the
constitutional level, it is possible to eliminate
discriminatory gifts and trusts through orthodox
common law reasoning, drawing upon the cases we
have already discussed.
 Harding further argues that, even regarding personal
autonomy to be a great value, the elimination of
discriminatory gifts and trusts is valuable once their
function as power-conferring rules is borne in mind.
 Conditions: Public Policy
 Harding suggested that a disposition of property in
pursuit of a racist goal, e.g. a trust for Adam’s
future wife, so long as she is white, should be
invalidated.
 But Harding would not strike down all gifts or
trusts that discriminated on the basis of race.
 Where a gift or trust is motivated by a valuable
goal, such as alleviating need, showing love and
affection, or expressing solidarity with a group,
cause or tradition, the courts ought to uphold such
gifts or trusts.
 Discretionary Trusts
 Discretionary trusts are trusts whereby trustees
 a discretion as to which objects should receive
distributions of trust property and/or
 in which proportions.
 Discretionary trusts resemble fiduciary powers of
appointment but are distinguishable
 Trusts are mandatory so that a trustee must choose among
the objects even if he regards all of them as undeserving.
Powers of appointment are not mandatory so the holder of
a power of appointment may choose not to exercise it.
 It is sometimes easy to confuse the two because
discretionary trusts are also sometimes confusingly
described as “trust powers”.
 Discretionary Trusts
 Historically, discretionary trusts were subject to
the same test for certainty of objects as fixed
trusts, i.e. the “complete list test”: IRC v
Broadway Cottages Trust [1955] Ch 20.
 This limited the utility of discretionary trusts as
a category because your class of objects needed
to be kept relatively small in order to satisfy the
test.
 However, in McPhail v Doulton [1971] AC 424,
which started the trend of liberalising the test
for certainty of objects for discretionary trusts
and fiduciary powers, this test was rejected for
discretionary trusts.
 Discretionary Trusts
 In McPhail v Doulton [1971] AC 424, the
settlor, Bertram Baden, Chairman of
Matthew Hall & Co Ltd, set up the Matthew
Hall Staff Trust Fund in 1941.
• Clause 9(a) of the trust deed provided:
“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 dependants of any such persons in such
amounts at such times and on such conditions
(if any) as they think fit.”
 Discretionary Trusts
 Baden passed away in 1960, his executors
challenged the validity of the trust, which had
assets worth £163,000.
 If the “complete list test” was applied to the
trust, it would clearly fail.
 The House of Lords held that the rationale
for applying the “complete list test” was
unsound – viz, in the absence of exercise of
discretion by the trustee, the court would
enforce the trust in accordance with the
maxim “equity is equality”.
 Discretionary Trusts
• Lord Wilberforce held that it was sufficient that
it can be said with certainty of any given
individual whether or not he or she was a
member of the class, without having to ascertain
membership of the whole.
• the House of Lords assimilated the test of
certainty of objects for discretionary trusts with
that for fiduciary powers from In re
Gulbenkian’s Settlements [1970] AC 508.

 This test, subsequently called the “given postulant test”

is not the same as the test for conditions precedent,
which had been proposed by the Court of Appeal in that
case but not accepted by the House of Lords.
 .
Discretionary Trusts

 The case was remitted to the lower courts’ for

decision, it was found (in Re Baden’s Deed
Trusts (No 2) [1973] Ch 9) that the trust was
valid.
 Unfortunately, although all the judges were in
agreement as to the result, their reasons
differed.
 The Court of Appeal agreed that both
“relatives” and “dependents” were conceptually
certain but there were slight disagreements
among the members.
 Discretionary Trusts

Sachs LJ Megaw LJ Stamp LJ

“relatives” “next of kin or

“descendants from a common nearest blood
ancestor” relations”

“dependents” “those who are wholly or partly financially

dependent on that person”
Discretionary Trusts
 However, the greater difficulty lies with the
Court of Appeal’s formulation of the test in
relation to evidential certainty.

• Sachs LJ: the court can never be defeated

by evidential uncertainty.
• Once the conceptual category is clear, it
was a question of fact whether any person
was within the class.
• If a person cannot prove to be within the
class, then he is considered to be outside
it.
Discretionary Trusts
 Megaw LJ: although it is not necessary to show
that a particular person was either within or
without the class, it was necessary to show that a
substantial number of objects were within the class.
 What constitutes a “substantial number” is a matter
of common sense and degree having regard to the
particular trust.
 Stamp LJ: that it must be capable of being shown
that any given person either is or is not within the
class even though a complete list of objects need
not be drawn up.
 Cf. Stamp LJ’s definition of “relatives”.
Discretionary Trusts

 Of the three tests, it is clear that Sachs LJ’s is the most

lenient and Stamp LJ’s is the strictest.
Sachs LJ Megaw LJ Stamp LJ
Increasing Strictness

 Virgo suggests that, in order to uphold more trusts, Sachs LJ’s

approach should be followed even though he considered Stamp
LJ’s test the most consistent with Lord Wilberforce’s.
Discretionary Trusts

 Ascertainability is not a requirement since trustees

can always pay into court the entitlement of any
beneficiary that cannot be located.
 However, the case of R v District Auditor, ex p
West Yorkshire Metropolitan County Council
[1986] RVR 24 introduced the concept of
administrative workability to discretionary trusts.
 Discretionary Trusts
 a local authority purported to create a discretionary
trust for the benefit of any, some, or all of the
inhabitants of the county of West Yorkshire, which
amounted to some 2.5 million objects.

 Although the court was prepared to assume that the

class was sufficiently certain, it held the trust for
being administratively unworkable because the class
was so wide that it was incapable of forming
 Discretionary Trusts
 Discretionary trusts therefore appear to have to
comply with the following modern
requirements:
Conceptual Certainty Y
Evidential Certainty Y*
Ascertainability N
Administrative Unworkability Y**
Capriciousness ?

* Note the differences of opinion on what this means in Re Baden

(No 2) [1973] Ch 9.
** Note that the decision has been criticised, including by Virgo.
 Nature of the beneficiaries’
beneficial interests

 Gartside v. IRC [1968] AC 553

 No quantifiable beneficial share. A
‘hope’ or expectation. (“Spes”). Trustees
have to exercise their discretion first.
 Example

Igive 2 million HKD on trust for the benefit

of residents in Hong Kong.
 Powers
 We have already seen that powers differ
from trusts in that powers are permissive
whereas trusts are imperative.
 Powers of appointment are powers held
by a person called the donee (who may
or may not be the trustee) to appoint a
person/persons to receive a distribution
of property.
 Unlike discretionary trusts, there is no
obligation on the holder of the power to
exercise it.
Powers
 Powers of appointment may be fiduciary in
character or not (the latter are sometimes called
bare or personal powers of appointment).
 Where they are fiduciary in character, the donee
must consider exercising the power even if he
may, after due consideration, choose not to
exercise it.
• Where they are fiduciary in character, the donee
must consider exercising the power even if he
may, after due consideration, choose not to
exercise it. This is unlike a discretionary trust
where the discretion must be exercised.
• Where it is bare or personal, the donee has no
duty to even consider its exercise.
 Powers
 Powers are also classified into general, special, and
intermediate (or hybrid) powers depending on the scope of
potential appointees.
 A general power is one in which anyone can be appointed by
its done, e.g. a gift to X for life with remainder to
whomsoever A shall appoint. Such a power is a general power
since A can appoint the property to anyone including himself.
 A special power is one in which the power restricts the choice
of appointees by its terms, e.g. a power to appoint among A’s
children or B Ltd’s employees.
 Intermediate (or hybrid) powers are powers to appoint anyone
except for a group of people, e.g. all persons except the settlor
and his wife.
 Fiduciary Powers
 The test for certainty of objects for
fiduciary powers of appointment see Re
Gulbenkian’s Settlements [1970] AC
508, a settlement by Calouste Sarkis
Gulbenkian.
 The settlement contained a power to
appoint in favour of Nubar Sarkis
Gulbenkian, his wife, children, remoter
issue, or anybody who employed him or
with whom he resided.
 This power was upheld by the House of
Lords because it could be determined
NubarCalouste Sarkis
Sarkis Gulbenkian
whether any individual was or was not a Gulbenkian
member of the class.
 Fiduciary Powers
 Note this is not the same test as that for conditions
precedent, which was the approach proposed by Lord
Denning MR and Winn LJ in the Court of Appeal
[1968] Ch 126.
 Note test for fiduciary powers should be identical to
that of discretionary trusts since the majority of the
House of Lords in McPhail v Doulton [1971] AC 424
explicitly assimilated the test for fiduciary powers
from Re Gulbenkian’s Settlements [1970] AC 508
with the test for discretionary trusts.
 This means that the same uncertainty as to what
evidential certainty is required (see Re Baden’s Deed
Trusts (No 2) [1973] Ch 9) also applies to fiduciary
powers.
 Fiduciary Powers
 The question of administrative workability as applied
to fiduciary powers is controversial.
 It has been suggested, obiter, that fiduciary powers
must be administratively workable: see Blausten v IRC
[1972] Ch 256.
 However, so-called intermediate powers, where the
class comprises the whole world other than members of
a limited class, have been upheld: see Re Manisty’s
Settlement Trust [1974] Ch 17; Re Hay’s Settlement
Trust [1982] 1 WLR 202.
 Even general powers where the class is unlimited but
the power is fiduciary have been upheld: Re Beatty
[1990] 1 WLR 202.
 Fiduciary Powers
 On the other hand, it has been suggested that capricious ought
also apply to fiduciary powers: see Gardner, “Fiduciary Powers
in Toytown” (1991) 107 LQR 214.
 It has also been suggested in Re Manisty’s Settlement [1974] Ch
17 that a power would be invalid if “the terms of the power
negative any sensible intention on the part of the settlor”, i.e.
the power is capricious.
 Templeman J in the case that a power to benefit “residents in
Greater London” is capricious.
 But in Re Hay’s Settlement Trust [1982] 1 WLR 202, Megarry
VC suggested that it would not be if the settlor was a former
chairman of the Greater London Council.
 Fiduciary Powers

 Fiduciary powers therefore appear to have to comply

with the following modern requirements:
Conceptual Certainty Y
Evidential Certainty Y*
Ascertainability N
Administrative Unworkability ?
Capriciousness Y**

* Note the differences of opinion on what this means

in Re Baden (No 2) [1973] Ch 9.
** This requirement is heavily criticised.
 Curing UnCertainty
 So far as evidential uncertainty is concerned, it has
been recognised by the cases that a third party can
be identified as an arbiter of the matter.
 In Re Tuck’s Settlement Trusts [1978] Ch 49, a
provision for any uncertainty about whether a
person was an “approved wife of Jewish blood” to
be resolved by referring the matter to the Chief
Rabbi was upheld as resolving any uncertainty.
 Lord Denning suggested that third parties could
resolve conceptual uncertainty as well.
 Cf. Eveleigh LJ’s approach which considers the
third party’s opinion as part of the definition of the
class.
 Curing UnCertainty
 What if the power to resolve uncertainty has been
delegated instead to the trustees rather than third
parties?
 It appears from the cases that the courts will allow
trustees to determine questions of evidential
uncertainty but not conceptual uncertainty.
 In allocating ultimate decision making powers to
the trustees, a settlor in effect ousts the
supervisory jurisdiction of the courts.
 If the courts are not in a position to supervise the
performance of the trust, how can it meaningfully
still be called a trust?
 Concluding Remarks
 The modern trust:
 trustees are often given the widest possible discretions,
i.e. discretionary trusts, or extremely widely drafted
intermediate powers of appointment.
 Trusts such as these facilitate tax avoidance or even
tax evasion. The explicitly nominated beneficiary at
the outset is never intended to benefit. i.e. charities
such as the Red Cross. Hence the name “Red Cross
Trusts”.
 Widely drafted trusts were facilitated by the court
decisions in the late 20th century.
 Has trust law gone too far?
 Scope of power
Minimum discretion but FIXED TRUST: Trustee under an obligation to
maximum actual distributive distribute according to the terms of the trust – no
activity discretion at all

DISCRETIONARY TRUST: Trustee under an

obligation to distribute at some point, but has
discretion as to how and when. Trustee also
under an obligation periodically to consider
whether to distribute

FIDUCIARY POWER: Donee of the power

under no obligation to distribute at all – but is
under an obligation periodically to consider
whether to distribute

Maximum discretion but

MERE POWER: Donee of a power under no
minimum actual distributive
obligation to distribute – and under no obligation
activity required
even to consider whether to distribute
Core Readings:
 Graham Virgo, The Principles of Equity & Trusts, 5th
edn, 80-122

Additional Optional Readings:

 Matthew Harding, “Some Arguments against
Discriminatory Gifts and Trusts” (2011) 31 OJLS 303
 CT Emery, “The Most Hallowed Principle: Certainty of
Beneficiaries of Trusts and Powers of Appointment”
(1982) 98 LQR 551
 Lionel Smith, “Massively Discretionary Trusts” in
Richard Nolan et al (eds), Trusts and Modern Wealth
Management