Trusts Certainty

Different test if the disposition can be construed as a series of gifts - in a gift to a class, as the objects are only entitled to a share of the property, it is vital to be able to say whether any given individual is or is not a member of the class - it is sufficient if at least one person answers the description (Re Allen)

(COO) Individual gifts subject to a condition precedent

- Baden type DT (Re Baden): per Lord Wilberforce, 'Equal is surely the last thing the settlor ever intended; equal division among all may, probably would, produce a result beneficial to none.' - No complete list is required and an individual postulant must prove that he or she is a member of the class of objects of the trust or power - If he does not prove that he is a member, then he is taken not to be one

(Emery) DT of the Baden type and Powers of Appointment

- Burrough type DT (Burrough v Philcox): where the court held that the property should be divided among the living nephews and nieces in equal shares - Disposition will fail unless a complete list of objects can be compiled

(Emery) Fixed Trusts and DT of the Burrough type

a trust may be void if the class to benefit is so wide that the trust would be administratively unworkable

Administrative workability

- the extent to which it is practicable for trustees to discharge their duties - a factor which by itself will avoid a fixed trust - appears to only apply to DT of the Baden type, which may fail because it is so ill-defined, the trustees cannot discharge and the court cannot execute - third class of uncertainty? - for powers, this notion seems inapplicable

Administrative workability (Emery)

- the extent to which the whereabouts or continued existence of persons identified as beneficiaries or potential beneficiaries can be ascertained. - problematic in DT of the Baden type - the problems of ascertainability will no more defeat the court in the case of powers of appointment than in the case of trusts (Lord Reid and Lord Upjohn in Re Gulbenkian) - Solution seem confined in cases of FT and DT of the Burrough type

Ascertainability (Emery)

(COO) permit trustees to distribute the trust property to the known beneficiaries pending the emergence of any absent beneficiaries, provided that the former will undertake to compensate the latter parri passu according to their appropriate share in the event of their reappearance

Benjamin order

(AW) Buckley LJ: 'if the class of persons to whose possible claims they would have to give consideration were so wide that it really did not amount to a class in any true sense at all no doubt that would be a duty which it would be impossible for them to perform and the power could be said to be invalid on that ground'

Blausten v IRC

(COSM) Property: Residue is certain, but it will not succeed if affected by a consequence (conditionally subsequent of prior to)

Boyce v Boyce

(COSM) - Beneficial interests - Testator established a trust of four houses for his daughters, Maria and Charlotte - Maria was to choose which house she wanted and other houses would be held on trust for Charlotte - Maria died before making her choice - Held: trust failed as it was no longer possible to say which houses would be held on trust for Charlotte (beneficial interest not clearly identified) Trust would have succeeded if the trustee had been given the power to choose the house, but in the absence of the power, neither the trustees nor the court could determine the beneficial interest.

Boyce v Boyce

s20A SOGA 1979, inserted by s1(3) SG(Am)A 1995: - A purchaser of an unascertained part of a bulk of goods acquires property rights in that bulk. - Purchasers of an unsegregated part of a larger bulk of property are protected (from creditors in the event of liquidation or receivership) - As soon as purchasers paid, they will be considered tennts in common of the whole property

COSM Tangible Property rule, following the enactment of the Sale of Goods (amendment) Act 1995

- Suggested by Templemann J in Re Manisty's Settlement, that a power fiduciary may be held void on the ground that it is 'capricious' - Difficult to see how notion of capriciousness differs essentially from that of administrative unworkability - Both notions appears to be that a settlor has attempted to impose on his trustees duties impossible of execution - 'It seems hardly necessary to invent a new vitiating factor - 'capriciousness' where essentially the vice is administrative unworkability and may properly so called.'

Capriciousness (Emery)

Re Abbott Fund Trusts, Re Andrew's Trust and Re Osoba

Cases of surplus in Certainty of Intentions

1. Barlow Clowes International v Vaughan; in an absence of a contrary intention, the trust should be allowed where the assets are choses in action and are all, therefore, indistinguishable from each other 2. Followed in White v Shortall and Re CA Pacific Finance Limited 3. referred to without disapproval by Arden LJ in the Court of Appeal in Re Lehman Brothers International (Europe) (No 2)

Cases supporting Hunter v Moss

Generally, dependent on words and course of conduct to check if settlor has done enough to make intention clear.

Certainty of Intention

- they have no duty to consider, can do nothing at all, objects will have no recourse - no duty to survey, can give property to first object fitting description - can release power, allowing gift over to apply irrevocably and become fixed

Certainty of Object for non-fiduciary (or personal) power

Morice v Bishop of Durham

Certainty of Objects

Must be certain: 1. what property is subject to the trust, 2. what part or share of the property each beneficiary is entitled to (beneficial interest) The exact location of identifiable subject-matter does not prevent a valid trust from arising.

Certainty of Subject Matter

Does not apply because the class to benefit in DTs merely hold a specs (hope) of benefitting, - the extent to which they can benefit, if at all, is at the absolute discretion of the trustees

Certainty of Subject Matters in respect of DTs

(COI) 'In full confidence that she will make such use of it as I should have made myself and that at her death she will devise into one or more of my nieces as she may think fit.' (sounds precatory and would suggest a gift. However, when read as a whole, the court concluded that it was trust)

Comiskey v Bowring Hanbury

- the precision of language used by the settlor to define the classes of person whom he intends to benefit - law's requirement: uniform in the case of trusts and powers of appointment of all kind

Conceptual Certainty (Emery)

Trust fails and the property will return to the settlor or estate on resulting trust

Effect of Lack of Certainty of Subject Matter

The trust will be void and the property will be held for the settlor (eg, RT)

Effect of lack of certainty of objects

Cardinal Principle: The objects of a trust must be defined with sufficient 'certainty' to enable the trustees(or in default, the courts) to execute the trust according to the settlor's intention. (same applies to a power of appointment) Questions concerning the certainty of objects: Conceptual certainty, evidential certainty, ascertainability, administrative workability

Emery 'The Most Hallowed Principle - Certainty of beneficiaries of trusts and powers of appointment'

Equity looks to intent rather than form

Equity principle behind the Certainty of Intention

- the extent to which the evidence available in a particular case enables specific persons to be identified as members of those classes (potential beneficiaries/beneficiaries) - Line drawn between [fixed trust & DT(Burrough type)] and [DT(Baden type) & powers of appointment]

Evidential Certainty (Emery)

there may be times when our consciousness of evidentiary difficulties will affect our readiness to undertake the process of imparting conceptual certainty

Evidential certainty (Klinck)

(COSM) - Intangible property - Decision was hurried, an inter vivos trust is not the same as a testamentary trust - Testamentary trust: testator does everything to divest himself of all his legal and equitable title in favour of the executor... no problem with non-segragation of trust property arises - Inter vivos trust: settlor does everything to create a trust (divest of his beneficial interest in the property) but until he has segregated the assets, the subject matters of the trust is uncertain - How to determine whether the shares, if any were sold, were or were not the purported subject matter of the trust. Uncertainty should cause the trust to fail

Hayton's criticism of Hunter v Moss

(COSM) - Intangible property - They will have certainty of subject matter regardless of the need for segregation - Dilton LJ distinguished Re London Wine Co on the basis that, unlike the cases of wine or other tangible property, these shares were indistinguishable from one another (no segregation was required) - Dilton LJ: there is no difference between a testamentary trust and an inter vivos trust giving a portion of their shares. - This is still the current approach, though it has received many criticisms

Hunter v Moss

(COO) - Leading case for Fixed trusts All the beneficiaries must be able to be identified - List principle/test

IRC v Broadway Cottages Trust

(COI) Cheque not endorsed correclty. Lord Cranworth LC: 'it would be a very dangerous example if loose conversation of this sort... should have the effect of the declaration of a trust' Equity will not perfect an imperfect gift

Jones v Lock

(COSM) - Property 'a handsome gratuity' - will fail as to certainty of subject matter!

Jubber v Jubber

(COI) The presence of precatory words will not necessarily prevent the court from finding that a trust exists, as long as it is satisfied that this was the intention of the donor. The word 'trust' does not necessitate a trust

Kinloch v Secretary of State for India

- The matters are very much within the power of the court themselves to determine the meaning and range of application of words - the ultimate test of certainty may well be the court's willingness to make the disposition 'practically certain' - concludes that no such word, at least without further qualification, is conceptually certain - a word may be given the appearance of having conceptual certainty by being qualified/defined - that is, by having its necessary and sufficient criteria stated. (these criteria are the result of the act of definition). Hence, for any vague word, it is possible to stipulate a definition to make it conceptually certain.

Klick 'McPhail v Doulton and certainty of objects: a semantic criticism'

Three Main Certainties - Certainty of intent; Certainty of subject matter - subject of trust; Certainty of objects - beneficiaries

Knight v Knight; Wright v Atkyns (perLord Eldon)

(COI) 1. Since this case, the courts have generally made a distinction between the use of precatory and imperative words. 2. 'to be at her disposal in any way she may think best, for the benefit of herself and her family' - merely moral obligation (Precatory wording - not trust)

Lambe v Eames

(COI) If there is no intention to create a trust, the done will take the property absolutely as a gift.

Lassence v Tierney

- Probably the most defensible of the three tests, because it is not hindered by unrealistic assumptions about the language - it can operate without pretending to be something other than it is - it implicitly recognises that the normal function of the courts is to make decisions about how to give effect to wishes and expectations expressed in language, and that, in a sense, as long as there is something to work with, this function can be performed

Lord Denning's test (Klinck)

- concluded that the wide distinction between the validity test for powers and that for trust powers is unfortunate and wrong, the rule in IRC v Broadway Cottages Trust ought to be discarded - test for the validity of trust powrs ought to be similar to that accepted by this House in Re Gulbenkian's Settlements for powers, that the trust is valid if it can be said with certainty that any given individual is or is not a member of the class - a wider and more comprehensive range of inquiry is called for in the case of trust powers than in the case of powers

Lord Wilberforce in Re Baden (No 1) [McPhail v Doulton]

(COSM) - Intangible property Even when the subject matter of the trust is intangible, a trust will not be created from a fund if the settlor did not intend part of that fund to be held on trust

MacJordan Construction Ltd v Brookmount Erostin Ltd

- also defined 'relative' as 'descendants of a common ancestor' - However, he argues that a class would be conceptually certain if it could be said with certainty that a substantial number of objects fall within the class, even if there were a substantial number of others whom it could not definitely be said that they were within or without the class. - his approach offers trustees more guidance in that conceptual certainty of the group can be tested by seeking a substantial number of individuals who definitely came within the class - 'substantial number' - Megaw LJ suggests that this is a question of common sense but wary trustees will still find themselves questioning whether they have done enough, especially should the situation arise where there are definitely a substantial number about whom they cannot say with clarity that they are within the class - Despite it being said that evidential certainty will not defeat a ST - Megaw LJ's approach rests on being able to provide evidence that a sufficient number come within the class - this test is criticised as being against what Lord Wilberforce and Lord Upjohn have expressly denied (the requirement of substantial number' added to the test) - Criticised as being unrealistic as it is unfastened and it will validate trusts without them having a real basis to them

Megaw LJ's approach in Re Baden (No 2)

(COI) If it is found that there was no genuine intention, void and unenforceable for want of certainty of intention - The court refused to give effect to the trust because it was a sham to be used only in the event of insolvency.

Midland Bank v Wyatt

Lord Eldon, 'the beneficiary principle' requires that there must be somebody in whose favour the court can decree performance

Morice v Bishop of Durham

Link between COI and COSM If there is a lack of certainty as to the subject matter of the trust, this will cast doubt whether the settlor truly intended to create a trust

Mussoorie Bank Ltd v Raynor

(COO) - Fixed trusts - illustration of the principle that the trustees must be able to draw up a list of beneficiaries for the trust to be valid - the word 'urgent suppliers' were held invalid (fail the uncertainty test)

OT Computers Ltd v First National Tricity

(COSM) - Property 'Bulk of my estate' - will fail as to certainty of subject matter!

Palmer v Simmonds

(COI) Intention to create a trust can also be inferred from the conduct of the donor In this case, a trust can be intended without knowing what it is. Scarman LJ: - the unsophisticated character of Mr Constance and Mrs Paul - the word 'the money is as much yours as mine' used more than one occasion - other features in the history of their relationship (the interview with the bank manager when the account was open; putting the bingo winnings into the account; the one withdrawal for the benefit of both of them - Scarman LJ finds a trust exists and dismisses the appeal

Paul v Constance

(COSM) - Property 'some of my best linen' - will fail as to certainty of subject matter

Peck v Halsey

(COI) Words of prayer and petition, which are likely not a trust.

Precatory wording

1. problem of vagueness endemic in all language, still exists when identifying the criteria the author attaches to the word (merely makes us feel more comfortable) 2. Difficulty of identifying intention, resulting in courts attributing intentions to the author instead of discovering his or her intentions (process of establishing criteria by stipulating the author's intention may not be very different from the process of stipulating criteria directly) 3. the ground rule of conceptual certainty test, namely, that this issue is to be determined as of the time of the making of the document is at least artificial, if not worse, because it makes very tenuous assumptions about how the language works. 4. it seems to be conventionally understood, involves a substantial measure of guesswork and wishful-thinking

Problems of conceptual certainty (Klinck)

1. Distinction clearly made by Lord Upjohn between linguistic or semantic uncertainty which, if unresolved by the court, renders the gift void 2. the difficulty of ascertaining the existence or whereabouts of members of the class, a matter with which the court can appropriately deal on an application for directions 3. the meaning of the words used is clear but the definition of beneficiaries is so hopelessly wide as not to form 'anything like a class' so that the trust is administratively unworkable or in Lord Eldon's words one that cannot be executed (Morice v Bishop of Durham)

Questions of uncertainty of objects (Lord Wilberforce)

(AW) If the class of objects is too wide, trusts considered to be 'administratively unworkable' note that this is a discretionary trusts case (Capriciousness) May be Void if capricious not that this is a discretionary trusts case

R v District Auditor, ex parte West Yorkshire Metropolitan CC

(COI) - Cases of Surplus Both cases have no provision for the residue in the event of a surplus after the stipulated events. In Re Abbott Fund Trusts, a RT was held (the beneficiaries were deceased, and had left no heirs); In Re Andrews' Trust: an outright gift (the beneficiaries were alive, and so there was a practical result to declaring the money a gift.

Re Abbott Fund Trusts and Re Andrew's Trust

(COI) 'unto and to the absolute use of my dear wife... in full confidence that she will do what is right as to the disposal thereof between my children' - merely moral obligation (Precatory wording - not trust)

Re Adams and the Kensington Vestry

(COO) - Individual gifts subject to condition precedent - Testator devised property to the eldest of the sons of his nephew 'who shall be a member of the Church of England and in adherent to the doctrine of that Church' - Held: the will created a condition precedent or qualification in sufficiently certain terms - cited in Re Barlow, that it need only be possible to identify one person who meets the description of the class - this is criticised by Mckay - that the test is both wrong in principle and must be regarded as being inconsistent with these later decisions (Re Gulbenkian/McPhail) that it should not have been adopted by Browne-Wilkinson J and that the decision in Re Barlow is on that account incorrect.

Re Allen

(COO) - powers - Landmark decision for DTs test of certainty of objects - 3:2 majority at the House of Lords (apply the same test as Re Gulbenkian) - Lord Wilberforce said the judge in Re Gestetner made good sense

Re Baden (No 1) [McPhail v Doulton]

- Applies the is/is not test to validate a DT from teh point of view of certainty of objects - Three judgments by Sachs LJ, Megaw LJ and Stamps LJ offers three modes through which a DT might be confirmed - Issue: the Court of Appeal was asked if the 'dependents' and 'relatives' were conceptually certain - conceptually uncertainty will defeat a DT, but evidential uncertainty would not. - The three judges agree that 'dependents' was conceptually certain. While the three judges also agreed that relatives was conceptual certain, they each reached this conclusion by different reasoning

Re Baden (No 2)

(COO) - Individual gifts subject to condition precedent - Lord Browne-Wilkinson - held that this could be valid because: 1. he interprets this as a series of gift 2. he relies on that the trustees should come with a scheme of arrangements on the basis that they think they have worked out for this particular testator, who are that person's friends, who were the people that were intended - He said that on this face, and in these circumstances, he is satisfied that these are the people who were intended - this case suggests that there are particular circumstances that you can be sure - this is a High Court decision, there is no suggestion of overruling the House of Lord's decision in Re Gulbenkian/McPhail

Re Barlow's WT

(COI) - Payments in a commercial context - applied Re Kayford where tenants' deposit account was set up to hold deposits against damages and breakages Bridge LJ: Three distinct statements that when considered in conjunction, are sufficient to manifest the intention to create a trust: 1. This (the opening of a bank account) was a practical step, designed to ensure that the deposits would not be spent as part of the company's general cash flow' (intention to prevent it from being swallowed up by the general funds of the company) 2. 'I was also concerned that I and my firm could be open to criticism if deposits were spent this way' (Mr Iredale must have regarded the company as being either under a moral or perhaps a legal duty to treat the tenant's deposits as impressed with some sort of beneficial interest in favour of the tenants and to ensure that sufficient funds were available to meet the tenants' claims to recover the deposits as and when those claims were mad) 3. 'I regarded the tenants' deposit account as available only for repaying the deposit of any tenant who had paid a deposit on or after 18 June 1974' (a positive declaration of his intention to create a trust at the material time) Bridge LJ therefore held it as an intention to create a trust

Re Chelsea Cloisters Ltd (in liquidation)

(COO) - Third Party references - 'old friend' - held that a concept was not made certain by leaving it to the trustees to decide who constituted, in that case 'an old friend' - reasons for this approach: 1. there are no clear, justiciable criteria on which the court can review the trustees' decision if the beneficiaries choose to challenge it 2. the court will typically be unwilling to allow these occupying the office of trustees to act as settlor also - while the decision would be clear, the criteria on which the trustees were to be judged would not and the courts could therefore have difficulty in reviewing their decision - Jenkins LJ, held that evidential uncertainty does not necessarily invalidate the trust

Re Coxen

(COI) 'it is my desire that my daugther allows Anne an annuity of £25 during her life' - merely moral obligation (Precatory wording - not trust)

Re Diggles

(COI) - Payments in a commercial context - where the way in which the recipient of funds treats the money is inconsistent with an enforceable obligation to use them for a particular purpose, there will be no trust - Quistclose, constructive and express trusts failed. Quistclose (no suggestion that the money ought to have been put to one side) Constructive (failed for the reasons of uncertainty) Express (obstacle)

Re Farepak

(COO) Harman J: - set out a distinction between a [power collateral or appurtenant, or other powers 'which do not impose a trust on the conscience of the donee'] and a [trust imposing a duty to distribute] - the learned judge said 'I do not think it can be the law that it is necessary 'to know of all the objects in order to appoint to any one of tehm' - 'it seems to me there is much to be said for the view that he must be able to review the whole field in order to exercise his judgment properly' though if the distribution is exercisable in favour of a very wide class, the trustees need not 'survey mankind from China to Peru' - this case is refused in IRC v Broadway Cottages Trust which reascertained the list test

Re Gestetner Settlement's

(COSM) - Property 'Reasonable income' not defeated be uncertainty, may be done objectively with reference to a beneficiary's circumstance. but arguable, if it is a one off payment, then what one off payment would be reasonable?

Re Golay's WT

(COSM) - Tangible property - Tangible goods will have certainty of subject matter only if segregated

Re Goldcorp Exchange

(COO) - Powers Certain if it could be said, of any given postulant, that he was or was not within the class of beneficiaries [the individual ascertainability test/ given postulant test/ is or is not test Lord Denning MR: - approved a 'one person' certainty of objects criterion which required merely that 'if the trustees can say of any particular that he is clearly within the category, the gift is good' - this was rejected by the House of Lords - followed by McPhail v Doulton

Re Gulbenkian's Settlement (HoL)

(COI) Lindley LJ: 'take the will you have to construe and see what it means, and if you come to the conclusion that not trust was intended, you say so.

Re Hamilton

(COSM) - Intangible property If the portion applies to two different types of relate to shares in different companies, then the trust will be in want of certainty - the rule in Hunter v Moss will not apply and the trust will be void if there is no further identification of the relevant property

Re Harvard Securities Ltd (in liquidation)

(COO) - Non-fiduciary pwoer - personal (non-fiduciary) powers are not void on the ground of uncertainty of objects But the power may be held void for excessive exercise of that power

Re Hay's Settlement Trusts

(COI) - Payments in a commercial context Conduct sufficient to show intention to create trust - writing not essential - Held that there was a clear intention to create a trust when the company separated the claimant's money in a separate account - 'the whole purpose of what was done was to ensure that the monies remained in the beneficial ownership of those who sent them, and a trust is the obvious means of achieving this?'

Re Kayford

(COSM) - Property 'and instruction to purchase 'blue chip' [investments]' - will fail as to certainty of subject matter!

Re Kolb's WT

(COSM) - Property 'Anything that is left' of the testator's estate was held to be sufficient clear

Re Last

(COI) - Payments in a commercial context - Issue: whether money paid into an account in the usual course of business could constitute an intention to set up a trust - the court held that even though the question of trust had never been brought up, requisite intention was present

Re Lewis's of Leicester

(COSM) - Tangible property - Tangible goods will have certainty of subject matter only if segregated

Re London Wine Co

(COI) - Payments in a commercial context - cited in Re Kayford - The money was sent in the faith or a promise to keep it in a separate bank account - Payment to a separate bank account is useful indication of an intention to create a trust, but it is not conclusive

Re Nanwa Gold Mines Ltd

(COI) - Cases of Surplus Goff LJ partly confirms the analysis in Re Abbott and Re Andrews, that 'both cases may well have been right' In cases that were, to all relevant degrees, identical and with the only difference being the status of the beneficiaries, thus appears to confirm the court's willingness to doff their judicial caps towards practicality in preference over faithful interpretation.

Re Osoba

(COO) - Individual gifts subject to conditions subsequent - Conceptual uncertainty for condition subsequent may be overcome by extrinsic evidence; facts were similar to Clayton - testator left his residuary estate upon trust, inter alia, for his grandchildren living at the date of his death 'provided that they attain the age of 25 and shall not marry outside the Jewish faith' - question was whether the restrictive clause was valid/void Held: the clause created a condition subsequent which was prima facie void for uncertainty, but extrinsic evidence, if available, was admissible to clarify the meaning of the expression 'of Jewish faith' in a way which was consistent with the notions that the testator had in mind - the proceedings were adjourned pending inquiries concerning the availability of such evidence

Re Tepper's WT

(COO) - Third Party references - any uncertainty about whether a person was married to an 'approved wife of Jewish blood' who worshipped according to the Jewish faith could legitimately be resolved by referring the matter to a chief rabbi, as the settlement had authorised. - Although all judges upheld the settlement, they did so on different basis - Lord Denning: conceptual uncertainty could be resolved by a third party. He did not consider that this would oust the jurisdiction of the court, since trustees can still apply to the court for directions as to whether the 3rd party had misconducted himself/herself or had come to an unreasonable decision - Lord Russell did not consider the Chief Rabbi since he did not find the condition to be uncertain - Eveleigh LJ: the third party is not being used to resolve uncertainty in the definition of the class, but forms part of the definition of the class. In other words, the relevant concept is not objectively those people of Jewish faith, but those people whom the Chief Rabbi considers to be of Jewish faith. The Chief Rabbi's opinion is regarded not as determining the meaning of the settlor's words by providing workable criteria for them. The chief rabbit's opinion is merely evidence of the settlor's opinion - Whichever construction of the role of third parties is adopted, it does not follow that the supervisory jurisdiction of the court is ousted completely, because the 3rd party can be required to give explanation to the Court as to the basis for reaching his/her decision - if this is found unreasonable, the court will be able to intervene and set the interpretation of the concept aside.

Re Tuck's Settlement Trust

(COO) - Non-fiduciary power - The donee must exercise power for proper purpose (if they do exercise the power - cannot have fraud on the power - donee cannot confer collateral benefit on non-object of the power

Re Wright

(COO) - Third Party references - 'people who have helped me' according to the trustee - too vague for a given postulant test - held: uncertain, trustees's opinion trustworthy?

Re Wright's WT

For trustees to be aware of their obligations under the trust, as they might be liable for a breach, certainty of trust helps the trustees AND To ensure that the court itself will be able to administer the trust

Reasons for Certainty

(COI) The court found an express declaration of trust from the repeated use of the word 'our' in reference to a boat together with the assurance given by Mr Prance that Mrs Rowe's security was her interest in the boat and his explanation pf why he alone could be registered as legal owner. The size of the share should be equal The regular use of the word 'our' indiciate an intent that no distinction was to be made between the parties as to the ownership of the interest. Equality is equity applie

Rowe v Prance

- 'relatives' to means 'descendants of a common ancestor' - reverse the onus of proof on the potential beneficiaries, this test avoids evidential certainty separates the question of evidential uncertainty by stressing that an exhaustive list is not required - in response to the problem that a potentially limitless number of people could be included within the definition, he makes three points: 1. the trustees shoudl exercise their discretion in a sensible way, thus making it more likely that they would choose chose relatives in the general course of events 2. proof of one's relationship to another soon becomes very difficult, providing a natural limit on who could establish their membership of the class 3. these issues are evidential and the fact that it will not always be possible to prove that any given individual is not a member of the class will not render the trust void - this approah is arguably the purest interpretation of conceptual certainty - the only drawback: no simple way for trustees to work out whether the class to benefit under the trust is conceptually certain - simple common sense can be a dangerous path for trustees who could be liable if they distribute the money wrongly.

Sachs LJ's approach in Re Baden (No 2)

(COSM) - Property 'remaining part of what is left, that he does not want for his own wants and use to be divided...' - gift, no obligation to give to siblings. Will fail as to COSM!

Sprange v Barnard

(COI)) the Court of Appeal looked to a solicitor's covering letter to conclude that a divorcing couple's arrangement that the wife transferred her share in the family home to her husband on the basis that their daughter should ultimately be entitled to her share amounted to a constructive trust.

Staden v Jones

- He takes a literal approach to the test set out in McPhail v Doulton that to be conceptually certain it must be possible to say of any given individual that they are or are not within the class - he rejected the idea that 'descendants of a common ancestor' could be conceptually certain and argued that the DT could only be valid in 'relatives' was defined as 'next-of-kin' - His reasoning seems determined to undermine the liberal implications of the decisions in McPhail v Doulton - Applying his approach, there would be no real difference between the new test McPhail and the previous complete list approach of IRC v Broadway Cottages Trust as every individual's membership of the class would have to be capable of being established. - It is questionable whether this approach would be followed in the future, particularly as Lord Wilberforce's full expression of the test states that a trust 'does not fail simply because it is impossible to ascertain every member of the class' - Stamp LJ's approach is the most conservative out of the three, he preferred complete certainty while the other two judges in this case would allow some uncertainty, Stamp LJ wanted de facto to create a complete list of beneficiaries.

Stamps LJ's approach in Re Baden (No 2)

(COSM) - Intangible property - Martin states that Hunter v Moss was fair, sensible ad workable - 'there was not need for segregation because the settlor retained his absolute ownership in the remainder of the shares in the fund and this yields a pot of identical property - Martin employs the tracing mechanism and says that this is an adequaate remedy for the beneficiary and that there is no need for segregation of the trust property even with an inter vivos trust regardless of the type of asset in Hunter involved intangible property.

Supporting arguments for Hunter v Moss (Jill Martin)

- Klinck identifies three different tests on certainty of objects: 1. McPhail v Doulton (Individual ascertainability test) 2. IRC v Broadway Cottages Trust (class ascertainability test) 3. Lord Denning's test in Re Gulbenkian's Settlement - if there is a particular person at hand, of whom you can say that he is fairly and squarely within the class to be benefitted, then the clause is good (test rejected by HoL in Gulbenkian)

Three Certainty of objects tests (Klinck)

(COI) Sufficient that the settlor intends to enter into arrangements which have the effect of creating a trust

Twinsectra Ltd v Yardley

(COO) enables trustees to publish an advertisement in the London Gazette to give unknown beneficiaries constructive notice of their entitlement

s27(2) Trustees Act 1925