Seminar 2

Classification and Three Certainties

Objectives
By the end of this Seminar you should be able to:
1. Identify and differentiate fixed trusts, discretionary trusts and powers and the
relevant tests which apply to determining the validity of each;
2. Apply skills in legal method to interpret dispositions and reach reasoned conclusions
on the validity of testamentary bequests; and
3. Assess the role of intention in creating an express trust.

Required Reading
 Virgo: Ch.4
 Hunter v Moss [1994] 1 WLR 452
 McPhail v Doulton [1971] AC 424 (HL)
 Re Baden’s Deed Trusts (No 2) [1973] Ch 9 (CA)

Further Reading
 Emery, ‘The most hallowed principle – certainty of beneficiaries of trusts and powers
of appointment’ (1982) 98 LQR 551
 Hayton, ‘Uncertainty of subject-matter of trusts’ (1994) LQR 335-340
 Parkinson, ‘Reconceptualising the Express Trust [2002] CLJ 657

1
Questions

Q1. Jenny died in 2022. During a successful career as a high-ranking police officer in
Birmingham, Jenny had devoted her life to advancing citizenship within the community. She
had also amassed a substantial collection of art by the 19 th Century artists - “The
Sisterhood”. By her will made in 2020, Jenny appointed Kevin and Michael as her trustees.
Jenny made a number of directions:

(a) One painting from my collection to be given, as my trustees think fit, to any
person who is appreciative of The Sisterhood.

(b) £100,000 to be disposed of within two years of my death, if they think it

appropriate, amongst the inhabitants of greater Manchester; the rest to be divided
equally between those who cared for my elderly mother before she died;

(d) The residue of my estate to be distributed at my trustee’s discretion to the good

citizens of Birmingham. Any question as to what I mean by “good citizens” is to be
determined by my old friend the Lord Mayor of Birmingham.

Advise the trustees as to the validity of these requests.

Q2. Do you think Hunter v Moss was a good decision? Why or why not?

Q3.When analysing the 3 certainties to what extent does the law ensure the intentions of
the settlor are fulfilled?