Trusts 2009 exam feedback (2).doc - Trusts exam feedback...

Trusts exam feedback: 2009
These notes should be read in conjunction with the HD answer that will be posted on
Blackboard as soon as possible.
You must read these notes and the HD answer before making an individual
appointment to see your lecturer.
Note: the course no longer covers incomplete gifts in detail and present/future
property as these are now done in Equity. This exam has more depth on that issue.
The law on intention is now different.
Question 1 concerned identification of the type of trust, breaches of duty and discussion
of remedies. Overall, this question was reasonably well done, with the most problems
being encountered in relation to remedy.
Validity:
You were told that the deed was properly drafted and a bank account established for the
trust.
There were no issues of whether the donation money was ‘future property’ which had to
be assigned; or whether the subject matter was sufficiently certain. Students who
correctly turned their mind to the issues identified that the bank account (as a chose in
action) was certain and existing subject matter of the trust, and any donations made after
the establishment of the account would have been deposited subject to the terms of the
trust.
The core issue regarding validity was whether this was a trust for people or purposes.
Students commonly only discussed whether it was one or the other, rather than discussing
both options.
Analysed as a trust for people, it was trust power to distribute $5000 among ‘Victorian
families in need’. We expected discussion of the terms of the deed that made it a trust
power. It was necessary to state and then apply the criterion certainty and administrative
workability tests from McPhail v Doulton .
There was a real question whether ‘families in need’ was criterion certain. Discussion of
whether ‘family’ and ‘in need’ were objectively definable terms was necessary. The
analysis was more important than the conclusion. Further, if the term was criterion
certain, the clause may not have been administratively workable. With only $5000 to
distribute, and given the size of Victoria’s population, it would seem unworkable. We
expected some discussion of the West Yorkshire case.
If the trust was not a valid trust for people; could it be saved as a trust for charitable
purposes?
Discussion of Pemsel’s case and the modern definition of a trust for charitable purposes
was necessary. This could be viewed as a trust to relieve poverty or as a trust under the
4 th head. It was necessary to discuss the requirement for public benefit, and whether a
poverty trust must benefit a section of the public ( Dingle v Turner ).
A conclusion that the trust was valid as a trust for persons or purposes was expected.

Liability
Saachi:
The breaches by Saachi were very obvious, and did not attract substantial marks. Most
students identified Saachi’s breaches.