This to discretionary trust as it does with

Topic: Business Law
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Last updated: September 14, 2019

This paper supports Lord Wilberforce’s judgement in McPhail in that the is or is not test, applied in Re Gulbenkian, should apply to discretionary trust as it does with powers to determine the certainty of objects.After critically analysing both perspectives of whether this test should or should not apply, it will be upheld that due to similarity, the is or is not test prevails. Those in objection of applying the same test to discretionary trusts and powers may focus on differences,for instance, a dissimilarity is that trustees in a discretionary trust must conduct a wider and more systemic survey of the range of objects than if they were given power, hence there is some direction as to why the same test should not be imposed. However, this narrow difference has lower significance and must not be outweighed by the similarities1.

As suggested by Lord Wilberforce, there is a close resemblance which “does not discourage the application of a similar test for the validity of trusts”. Despite differences, they also have much in common as regards judicial control of discretion by the court the influence of this case can be seen in later authorities on other areas of trust administration, including the rights of beneficiaries to inspect trust documents, considered by the Privy Council in Rosewood Trust Ltd v Schmidt2 and by Briggs J in his admirable judgment in Breakspear v Ackland.3 Therefore, discretionary trusts and powers of appointment should be subject to the same principles. 4 We mustconsider that trusts and powers are often blended’5 and to portray that they are often ‘blended’, both tests set out to determine which object will benefit from certain property, manageproperty in a similar method and intend to identify the owner of the propertyheld on trust.

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 To summarise, the test for the validity of discretionary trusts should be similar to the is or is not test where the trust will be valid if it can be said with certainty that an object is or is not a member of the class, agreeing with the decision held in McPhail. This should be imposed due to the similar principles of powers and trust powers that they both possess and has less complications than if the complete list test wasapplied.  1 New Law Journal 153 NLJ 1300 5 September 2003 Disclosure of trust documents2 Rosewood Trust Ltd v Schmidt3 Trust LawInternational 2017 The changingface of trust law Robert Walker Breakspear v Ackland4 Equity and Trusts by Mohamed Ramjohn5 George Farwell, Farwell onPowers, 3rd ed. (1916), p.


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