Elsewhere, the unworkability qualification ensures that trust funds are not run down in searching for a hopelessly wide class of potential beneficiaries. in the nieces and nephews living at the date of settlement all along, o If the original power of appointment was valid, the discretionary trust created by the trust to pay the income thereof to 'any person or persons whatsoever' or any charity as they When enduring powers of attorney were introduced by the Enduring Powers of Attorney Act 1985, s 2(8) it was expressly provided that a power of attorney granted under section 25 could not be an enduring power of attorney. In Re Kayford,[6] Megarry J held that "it is well settled that a trust can be created without using the word "trust" or "confidence" or the like; the question is whether in substance a sufficient intention to create a trust has been manifested". [24] If there are any potential beneficiaries who the trustees are not certain of, or the trustees cannot compile a complete list, the trust is void for uncertainty.[25]. persons to whom the appointment was to be made, but had merely provided the mechanism Indeed, the Court of Appeal confirmed in the case of IRC v Broadway Cottages that in fixed trusts linguistic and evidential certainty as to beneficiaries are both essential. By tradition, it can be said that the duty is to hold balance between different beneficiaries or classes or beneficiaries. In the case of private trusts, the general rule is that where there is more than one trustee they must, in the exercise of their functions, act unanimously. Looking for a flexible role? Hunter's Will Trust, Gilks v. Harris - [1962] 3 All ER 1050; [1963] Ch 372; [1962] 3 WLR 1442; . 2427356 VAT 321572722, Registered address: 188 Fleet Street, London, EC4A 2AG. HWr8}W! This is a Premium document. AB was a professional trustee of two discretionary trusts created by the late parents of D1, a Will Trust for the benefit of their issue, and a Grandchildren s Trust for the benefit of their grandchildren (i.e. The testator transferred property on trust for his two children for life, with remainder to his issue, and declared that if they should die without issue, the survivor should have the power to dispose by will among my nieces and nephews, or their children, either all to one or to as many of them as my surviving child shall think fit. An exhaustive discretionary trust is one where, during the trust period, the trustees are required to distribute the income or capital, or both, but retain a discretion as to the mode of distribution and the persons to whom the distribution may be made. In McPhail v Dalton, Lord Wilberforce gave the example of the residents of Greater London. That is why without the express authority of the trust deed, the consent of the beneficiaries or an order of the court, even a professional trustee could not charge. A non-exhaustive discretionary trust of income exists where the trustees may legitimately decide not to distribute the income and the settlor has specified the effect of non-distribution; for instance, the undistributed income may be accumulated or paid to another. A general power of appointment is one which entitles the donee of the power to appoint in favour of anyone, including himself. Obviously, the trustee must abide by the trust instrument and make n appointment that is not allowed by it. The court construes the instrument and decides that, in accordance with the intention of the settlor, a discretionary trust was intended. There was, therefore, an irrational irregularity between the limited power in the Trustee Act 1925 and the broad power in the Enduring Powers of Attorney Act 1985. Thus, the trustees may have a power or discretion over the type of investments that may be made by the trust, whether to appoint agents on behalf of the trust, whether to apply income for the maintenance of infant beneficiaries, whether to make an advancement on behalf of a beneficiary, whether to appoint additional trustees, etc.
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