May 2022 A

(a) £50,000 to my trustees to be distributed equally among the

children of my colleagues who worked with me at St Jude’s College.
St Jude’s College has since closed down, but Thomas worked there
from 2010 – 2020;
Validity of provision of will of thomas in this part of question will be
determined under 3rd element of creation of trust; that is certainty of trust.

In certainty of trust, there are are 3 aspects which ought to be sufficiently

certain for valid creation of trust: knight v knight. One of it is certainty
of objects. It is important for trustee to carry out their job to know who
those beneficiaries are: morice v bishop of durham. Beneficiaries are
required to be certain in three aspects.

First is conceptual certainty which means beneficiary should be certain,

identified. Thomas willed 50,000 to his trustee for children. Beneficiaries
are children. What constitutes children could involve wide interpretation
which could doubt their conceptual certainty. Hence children could be
conceptual uncertain. However, sachs lj in re baden’s deeds trust stated
some examples of conceptually certain classes of beneficiaries; these
include ‘members of x trade’. thomas trusted 50,000 pounds for his
colleague’s children who worked with him at st jude’s college from 2010-
2020. thus children of thomas’ colleagues were certain, identified.

Second aspect is evidential certainty which means ‘proving whether a

person falls within class intended to benefit’: re baden’s deed trusts no.2.
To prove evidential certainty, it depends upon type of trust. One type of
trust is fixed trust. In fixed trust, interest or share of beneficiary is
specified. Thomas trusted 50,000 pounds ‘to be distributed equally’.
Distributions of 50,000 pounds equally shows that shares of beneficiaries
are specified.
In fixed trust, test for certainty of object is complete list test: IRC v
Broadway cottages trust. In complete list test, trustee will make list of all
intended beneficiaries. After making list, trustee checks whether the
individual is within intended beneficiaries category. Trustees of thomas
will make list of all intended beneficiaries who are children of thomas’s
colleagues who worked with him at st jude’s college from 2010 to 2020
and determine whether the beneficiaries are within intended beneficiaries’
category. If yes then the specified amount of share is given to them.

Third aspect is whereabouts certainty which means whereabouts of

beneficiaries should be certain. Beneficiaries are thomas’s colleagues
children and colleagues are those who worked with thomas at st jude’s
college. Hence whereabouts of children are being children of colleagues
of thomas who worked with him at st jude’s college; whereabouts is
certain.

(c) £200,000 to my trustees to be distributed in such shares as they

see fit among those people who were students of St Jude’s College
from 2010 to 2020;
Provision of will of thomas will be determined under 3rd aspect, certainty
of object, of certainty of trust which is 3rd element of creation of trust.
Principles of certainty of objects are mentioned above in part (b) of this
question. The principles will only be linked with facts of scenario in this
part of question.

Beneficiaries are required to be certain in three aspects. First aspect is

conceptual certainty. Thomas trusted 200,000 pounds for students.
Beneficiaries are students. What constitutes students could involve wide
interpretation which could doubt their conceptual certainty. Hence
students could be conceptually uncertain. However, following re baden’s
deeds trusts no.2 students could amount to conceptually certain as
students are of st jude’s college.

Second aspect is evidential certainty. Thomas trusted 200000 pounds to

his trustees ‘to be distributed in such shares as they see fit’. One type of
trust is discretionary trust. Trustee has discretion in discretionary trust
regarding which member get what amount of share of trust property.
Thomas’s trustees had discretion regarding which student get what
amount from 200,000 pounds trusted. Thus it is discretionary trust.
In discretionary trust, test for certainty of object was complete list test:
IRC v broadway cottages trust. However, in McPhail v Doulton complete
list test was rejected. The new test was is or is not test. In is or is not test,
trustee has to decide whether beneficiary who came to him is or is not
member of intended beneficiaries: Re Gulbenkian’s. Accordingly,
thomas’s trustees will decide whether student who came to them is or is
not st jude’s college student from 2010-2020. If the student fell under
intended class of beneficiary the trustee would his discretion to give
amount of share from 200,000 pounds.

Third aspect is whereabouts certainty. Whereabouts of students is st

jude’s college.

The three aspects are satisfied; hence the provision is valid.

(d)£75,000 to my trustees for distribution among the inhabitants of
Oldhampton within two years of my death, in such shares as my
wife, Wendy shall decide, failing which any unspent money shall go
absolutely to my own children in equal shares. Thomas has three
children and Wendy tells the trustees that she wishes to distribute
the money rather than give it to her children if at all possible;
Provision of will of thomas will be determined under 3rd aspect, certainty
of object, of certainty of trust which is 3rd element of creation of trust.
Principles of certainty of objects are mentioned above in part (b) of this
question. The principles will only be linked with facts of scenario in this
part of question.

Beneficiaries are required to be certain in three aspects. First aspect is

conceptual certainty. Thomas trusted 75000 pounds for oldhampton
residents. Oldhampton residents are certain, identified beneficiaries.

Second aspect is evidential certainty. One type of trust is powers. Powers

is of 2 types; one of it is mere powers. It is conferred to some non-trustee.
Thomas trusted 75,000 pounds to his trustees to be distributed ‘in such
shares as his wife wendy shall decide’ among oldhampton residents.
Power to distribute 75000 pounds is conferrd to wendy.
Power holder is not obliged to perform that power. Wendy is not obliged
to perform the power. Wendy however decided to distribute 75,000
pounds.
In powers test for certainty of object is is or is not test: re gulbenkian’s.
in is or is not test trustee has to decide whether beneficiary who came to
him is or is not member of intended beneficiaries. Wendy would decide
whether residents who came to him are member of intended beneficiaries
class, which is oldhampton residents. If yes then wendy would distribute
75,000 pounds among oldhampton residents in such shares as she decided
instead of giving to her children ‘if at all possible’.

However, the provision stated that in case of failing to distribute 75,000

pounds any unspent amount would go absolutely in equal shares to
thomas’s three children. One type of trust is fixed trust. Fixed trust and
test for it is explained in part (b) of this question. Distribution of unspent
amount in equal shares is specified; thus it is fixed trust. Applying the
test, list of all intended beneficiaries will be made and from it thomas’s
three children will be picked and unspent amount would be equally
distributed among the three children.
? Who will make list wendy or trustee
Third aspect is whereabouts certainty. Whereabouts of residents are
oldhampton; whereabouts is certain.
? In situation of failure to distribute shares among oldhampton residents,
whereabouts of children,

Powers are not invalid for administrative unworkability but capricious

powers are invalid: re manisty’s. Capricious power is when ‘terms of
power negated any sensible intention on part of settlor’. Trust for
oldhampton residents is capricious power as it any sensible intention on
part of thomas to distribute money among entire oldhampton residents.
Thus provision is invalid.
? Explain admin unwork

( Administrative unworkability:
Trust with certainty as to class of objects can be failed if trust is
administratively unworkable. In mcphail v doulton court held that class
of intended beneficiaries should not be so lengthy that trust becomes
administratively unworkable. Thomas trusted 75000 pounds for
oldhampton residents. Oldhampton residents are a lengthy class of
beneficiaries that it is administratively unworkable to distribute 75000
pounds among them. Thus the provision became invalid due to
administrative unworkability. )

MS:
(( is a mere power followed by a fixed trust and so subject to two
sets of certainty rules (see Burrough v Philcox) and, perhaps,
administrative unworkability (although it is not clear that this
applies to mere powers); ))

Oct 2022 B
Q6. ‘The test for certainty of objects in trusts and powers is directly
related to the duties that trustees and donees of powers are
under.’Discuss.

Oct 2022 A
Q5.
(a) £20,000 to my trustees to be divided in their absolute discretion
among those of my relatives who are sympathetic to protecting the
environment;
Validity of provision of will be determined under certainty of objects,
which is one of elements of third element of creation of trust, certainty of
trust.

It is important for trustee to carry out their job to know who those
beneficiaries are: morice v bishop. Beenficiaries are required to be certain
in three aspects.

First is conceptual certainty which means beneficiary should be certain,

identified. tubo gave to his trustees 20,000 pounds for his relatives.
Beneficiaries are relatives. in re baden’s deeds trusts no.2 court regarded
relatives as conceptually certain despite criticism that relatives could
involve wide interpretation. Court held that it is duty of trustee to select
direct relatives and not remote relatives. Thus tubo’s trustees would select
direct relatives of tubo and then they will be conceptually certain.
Moreover, the provision stated that 20,000 pounds is for relatives ‘who
are sympathetic to protecting environment’. tubo has thus identified
relatives to whom 20,000 pounds would be distributed. Thus relatives are
certain, identified.

Second aspect is evidential certainty which means ‘proving whether a

person falls within class intended to benefit’: re baden’s deeds trust no.2.
to prove evidential certainty, it depends upon type of trust. One type is
discretionary trust. Trustee has discretion in discretionary trust regarding
which member get what amount of share of trust property, but he is
obliged to perform trust. Tubo gave 20,000 pounds to his trustees to
distribute them in their absolute discretion among his relatives.
Distribution of 20,000 pounds at trrustee’s discretion among relatives is
discretionary trust.
In discretionary trust, test for certainty of objects was complete list test:
irc v broadway cottages trust. However in re baden no.1 complete list test
was replaced with is or is not test. In is or is not test trustee has to decide
whether beneficiary who came to him is or is not member of intended
beneficiaries: re gulbenkian. Tubo’s trustees would decide wheether
relatives who came to them is or is not member of relatives ‘who are
sympathetic to protecting environment’. If the relatives fell under
intended class of beneficiary then trustee would use his discretion to
divide 20,000.

Third aspect is whereabouts certainty which mean whereabouts of

beneficiareis should be certain. Whereabouts of direct relatives ‘who are
sympathetic to protecting environment’ would be to be tubo’s relatives.
The three aspects are satisfied;hence the provision is valid.

(b) £50,000 to my trustees to distribute in their absolute discretion

among the supporters of the Equality Club, in default of which to St
Olaf’s Hospital Charity. The question of what constitutes a
supporter of the Equality Club to be determined conclusively by the
President of the Club;
? Powers

Validity of provision of will be determined under certainty of objects,

which is one of elements of third element of creation of trust, certainty of
trust.

To establish certainty of object its three aspects and its principles are
mentioned above in part (a) of this question. The principle will only be
linked with facts in this part of question.

First aspect is conceptual certainty. Tubo left 50,000 for equality club
supporters. Equality club supporters are beneficiaries. What constitutes
equality club supporters is not given thus it can involve wide
interpretation and eventually doubting their conceptual certainty.
Where there is conceptual uncertainty 3rd party cannot resolve it: re
coxen. However, where settlor stipulated workable formula to solve
uncertainty trust cannot be failed: re tuck. Tubo had stated in will that
what will compromise equality club supporters will be conclusively by
president of club. By appointing presdient of club to decide what will
compromise equality club supporters, Tubo gave workable formula to
solve uncertainty. Thus conceptual uncertainty will be resolved.

Second aspect is evidential certainty which is determined from type of

trust. Tubo’s trustee will distribute 50000 pounds in their absolute
discretion. The is discretionary trust as tubo’s trustee will give in their
absolute discretion 50000 pounds. Since it is discretionary trust the test is
or is not test. Tubo’s trustee will decide whether supporters who came to
him is or is not member of equality club supporters definition which is
given by president of club; if yes then trustee will distribute 50000
pounds in their absolute discretion.

Third aspect is whereabouts certainty. Whereabouts of equality club

supporters would be determined from definition that president of club
gives for equality club supporters.
(c) ten of the bottles of Shoehorn Malt Whisky in my cellar to my
daughter, Dorsa. There are thirty bottles of Shoehorn Malt Whisky
in the cellar when Tubo dies;

Validity of provision of will be determined under certainty of subject

matter, which is one of elements of third element of creation of trust,
certainty of trust.

Subject matter is property over which trust is declared. Tubo left

shoehorn malt whisky bottles for his daughter, dorsa. Subject matter is
shoehorn malt whisky bottles.

Certaitny of subject matter covers two issues. First is certainty as to

property itself; thisi means property should be identifiable: sprange v
barnard. Property, shoehorn malt whisky bottles, is identifiable.

Second issue is that property should be quantifiable: sprange v barnard.

This means how much of property should beneficiary get. Quantification
of property depends upon type of property. Proeprty can be tangible.
shoehorn malt whisky bottles is tangible property.
In tangible property trust property should be segregated from bulk: re
london wine. Tubo left 10 shoehorn malt whisky bottles for dorsa which
were present in his cellar, but in cellar there were 30 bottles of shoehorn
malt whisky. The gifted 10 bottles were not segregated from 30 bottles.
Segregation is needed even among homogenous chattels: re goldcorp
exchange. The gifted 10 bottles from 30 bottles were homogenous
chattels because both quantities are shoehorn malt whisky and there was
no segretation of 10 bottles from 30 bottles. Thus the gift is invalid.

(d)a reasonable portion of the residue of my estate to my wife,

Wanda, so that she might dispose of it during her lifetime in her
absolute discretion, with whatever is left on her death to be divided
equally among our children absolutely;

Validity of provision of will be determined under certainty of intention,

which is one of elements of third element of creation of trust, certainty of
trust.

Certainty of intention means settlor should have clear intention to make

trust: richards v delbridge. Intention can be declared by words. The
provision of will stated that tubo’s residue of estate reasonable portion
would be given to wanda, his wife, who ‘might dispose of it during her
lifetime in her absolute discretion’. these are words in will which shows
tubo’s intention to make trust.
Words should oblige trustee to execute trust as asked: mccomick v
grogan. Moral obligation is not enforceable. the words of will contained
word that wanda might dispose of. The word might does not oblige
wanda to dispose of reasonable portion of residue of tubo’s estate. Words
should be imperative, not precatory that express wish or hope: wright v
atkyns. Word ‘might’ expresses tubo’s hope; hence it is precatory word.
If precatory words are use trust fails because it is not in accordance with
intention to create trust; it does not impose obligation on trustee to carry
out trust. Due to precatroy word provision of will is invalid.

May 2023 A
(a) £10,000 to my trustees to distribute equally among the people
who studied law with me at university. Nia was one of 50 people
who studied law at Crowcroft University and who graduated
together;
Disposition in will of will of nia will be determined under certainty of
objects which is 3rd aspect of 3rd element of creation of express trust,
certainty of trust.

There must be beneficiaries to a trust. It is important for trust to carry out

their job to know who those beneficiaries are: morice v bishop of
durham. Beneficiaries are required to be certain in three aspects.

First aspect is conceptual certainty which means beneficiary should be

certain, identifiable. Nia disposed 10,000 pounds for people who studied
law with nia at crowcroft university. Students of law at crowfort
university who studied with nia are certain, identifiable beneficiaries. thus
beneficiaries of trust of nia are conceptually certain.

Second aspect is evidential certainty which means ‘proving whether a

person fall within class intended to be benefit’: re baden’s deed trusts
no.2. To prove evidential certainty, it depends upon type of trust. One
type is fixed trust. In fixed trust interest or share of beneficiary is
specified. Nia trusted 10,000 pounds to be given equally among people
who studied law with nia at crowcroft university. Division of 10,000
pounds equally shows that shares of people who studied law with nia at
crowcroft university are specified. Thus it is fixed trust.

In fixed trust test for certainty of object is complete list test: irc v
cottages trust. In complete list test trustee will make list of all intended
beneficiaries. There were 50 people including nia with whom she studied
at crowcroft university law and graduated with them. Thus nia’s trustees
will list of those 49 people. After making list trustee checks whether
individual is within intended beneficiaries category. If yes then specified
amount of share is given to them. After making list nia’s trustee will
check whether those 49 people fall within intended beneficiaries
category. If yes then shares would be distributed equally among them.

Third aspect is that whereabouts certainty which means whereabouts of

beneficiaries should be certain. Whereabouts of people who studied law
with nia is that crowcoroft university.

The three aspects are successfully satisfied. Thus disposition is valid.

(b) £20,000 to my trustees believing they will look after my close

friend, Ena;
Validity of disposition in will of nia will be determined under certainty of
intention which is 1st aspect of 3rd element of creation of trust, certainty
of trust.

To create trust there must be intention to create trust when handing over
property to trustee: richards v delbridge. Intention can be declared by
words. Nia in her will trusted 20,000 pounds for look after of ena, her
close friend. Nia expressed her intention to create trust in wording of will.

Words should oblige trustee to execute trust as asked: mccormick v

grogan. Moral obligation is not enforceable. Words should be imperative,
not precatory that express wish or hope: wright v atkyns. If precatoryy
words are used trust fails because it does not ‘impose obligation’ on
trustee to carry out trust. Nia on belief that trustees will looks after ena
trusted 20,000 pounds to trustees. Word belief does not impose obligation
on trustees to execute trust as asked. Word believe is precatory word that
expresses nia’s hope. Due to usage of precatory word disposition would
fail.
However in comiskey v bowring-hanbury court did not solely rely on
words but considered them in context. Considering wording of nia’s will
in context the will further stated that they ‘will look after’ ena. ‘will look
after’ indicates imposition of trust obligation. Thus disposition is valid.

(c) £40,000 to my trustees to distribute as they see fit among the

candidates of Crowcroft University. The trustees wish to carry out
all of these instructions. Unfortunately, the records of past
candidates of Crowcroft University have been destroyed in a fire.
There are currently 5,000 candidates studying there.
Validity of disposition will be determined under certainty of objects
which is 3rd aspect of 3rd element of creation of express trust, certainty of
trust. Principles of certainty of objects are mention above in part (a) of
this question. The principles will only be linked facts of scenario in this
part of question.

Beneficaries are required to be certain in three aspects. First aspect is

conceptual certainty. Nia disposed 40,000 pounds to crowcroft university
candidates. Beneficiaries are crowcraft candidates. What constitutes to be
crowcroft university candidates is not defined; past records of candidates
from which criteria for candidates could be deduced but it is also
destroyed; this would doubt their conceptual certainty. However, there
were 5000 candidates studying at crowcroft university. From records of
current 50000 candidates a criteria for candidates can be deduced.
However, where there is conceptual uncertainty 3rd party or trustee himelf
cannot resolve it: re coxen. Court held that 3rd party involvement can help
resolve evidential uncertianty but not conceptual uncertainty. This is
because it would finish court’s jurisdiction to help out in solving problem
and trust which settlor has himself defiend incompletely cannot be
secured by taking assistance from trustee’s opinion whn in relatiy trustee
relies on settlor’s settlement and opinion. Accordingly if court orders to
use record of current 5000 candidates to deduce criteria for candidates
then conceptual uncertainty can be resolved.

Second aspect is evidential certainty which is proved from type of trust.

Powers are of 2 types. One of it fiduciary power. It is conferred to some
trustee. Nia conferred disposition to distribute 40,000 as they see fit to
her trustees.
Powers are not of obligatory nature; therefore they are not enforceable. In
powers trustee has just power. However this does not mean that trustee
will ignore it. He will execute it when intended beneficiaries arrives.
Nia’s trustee wished to execute will.
In powers, test for certainty of object is is or is not test: re gulbenkian. In
is or is not test trustee has to decided whether beneficiary who came to
him is or is not member of intended beneficiaries. Nia’s trustee will
decided whether candidates who came to her is or is not comply with
criteria of crowcroft university candidates. If yes then trustees would
distribute 40,000 pounds ‘as they see fit’.
? Discretionary trust

Third aspect is whereabouts certainty. Whereabouts of candidates is

crowcroft university.
(d) £80,000 to my trustees to distribute as my close friend Ena shall
choose from among the law lecturers of Crowcroft University
within two years of my death,
failing which the balance shall be distributed to all lecturers of
Crowcroft University equally.
The trustees wish to carry out all of these instructions. Ena has
asked the trustees to pay all of the £80,000 to Dr Max, her brother
Validity of disposition would be determined under certainty of objects
which is 3rd aspect of 3rd element of creation of express trust, certainty of
trust. Principles of certainty of objects are mention above in part (a) of
this question. The principles will only be linked facts of scenario in this
part of question.

Beneficaries are required to be certain in three aspects. First aspect is

conceptual certainty. Crowcroft university law lecturers are beneficiaries.
They are identified and certain as they lecturers are of law at crowcoroft
university.

Second aspect is evidential certainty which is determined from type of

trust. Powers is of 2 types. One of it is mere power. It is conferred to
some non-trustee. Nia conferred it to ena, her close friend. Ena within 2
years of nia’s death would choose from crowcroft univeersity law
lecurers among whom trustees would distribute 80,000 pounds. Power
holder is not obliged to perform that power. Ena is not obliged to perfom.
Ena however decided to give 80,000 pounds to her brother, dr max. She
thus failed to choose from crowcroft univeersity law lecurers and
distribute 80,000 among them. The disposition has become invalid under
evidential certainty.
? Mention test

?:
- separate certainty made
-lecturers certain?
The disposition further stated that in case of failure to choose law
lecturers by ena, ‘the balance shall be distributed to all lecturers equally’.
According to first aspect of certainty of object, beneficiaries are all
lecturers of crowcroft university. Beneficiaries are thus identified, certain.
There is conceptual certainty.

As per second aspect of certainty of object, evidential certainty is

determined from type of trust. One type is fixed trust. In fixed trust
interest or share of beneficiary is specified. Disbtribution of 80,000
pounds equally among all lecturer means that shares of all lecturers is
specified.
In fixed trust test for certianty of object is complete list test. Trustee will
make list of all intended beneficiaries. After making list trustee checks
whether individual is within intended beneficiaries category. If yes then
the specified amount of share is given to them. Nia’s trustee will make
list of intended beneficiaries and see if all lecturers fall within intended
beneficiary list. If yes them 80,000 would be distributed equally.

Regarding third aspect of certainty of objects, whereabouts of

beneficiaries, all lecturers of crowcroft university, is crowcroft university.
Whereabouts is thus certain.

The three aspects are satisfied. The disposition became valid.

Oct 2021 B
(a) £30,000 to his trustees to be divided equally among his relatives
who are committed to a healthy lifestyle.

(b) £80,000 to his trustees, who shall in their absolute discretion

divide the fund among the students of St Barnabas College, paying
particular regard to those who had excelled at College sporting
events.
? particular regards means only those who excelled in sporting events or
consider others also
? Certain if only mentioned students of clg.

(c) ‘Ten of the bottles of red wine in my cellar to my friend,

Cordelia.’ There are only ten bottles of red wine in his cellar when
Tyrone dies, all of the same type, although when the Will was
written there had been over 50.
? if segregated then valid . if not segregated then invalid

(d) The remainder of his estate to his trustees, so that his wife,
Hera, might, during her life, dispose of it in her absolute discretion
among his close friends, failing which on her death it shall go to the
London Hospital for Sick Children (a registered charity).
? Remainder of estate
Oct 2021 B
(a) A reasonable portion of my savings held at the Stokes Building
Society to be held on trust for Imran and Safwaz jointly, the
remainder to be divided equally among such of my family as are
unmarried at my death.

(c) £500,000 to my Trustees to divide in such shares as they think

fit among the undergraduates of St Joseph’s College, where I was a
student.