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Trusts exam feedback: 2009These notes should be read in conjunction with the HD answer that will be posted onBlackboard as soon as possible.You must read these notes and the HD answer before making an individualappointment to see your lecturer. Note: the course no longer covers incomplete gifts in detail and present/futureproperty 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 discussionof remedies. Overall, this question was reasonably well done, with the most problemsbeing encountered in relation to remedy.Validity:You were told that the deed was properly drafted and a bank account established for thetrust.There were no issues of whether the donation money was ‘future property’ which had tobe assigned; or whether the subject matter was sufficiently certain. Students whocorrectly turned their mind to the issues identified that the bank account (as a chose inaction) was certain and existing subject matter of the trust, and any donations made afterthe establishment of the account would have been deposited subject to the terms of thetrust.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 discussingboth options. Analysed as a trust for people, it was trust power to distribute $5000 among ‘Victorianfamilies in need’. We expected discussion of the terms of the deed that made it a trustpower. It was necessary to state and then apply the criterion certainty and administrativeworkability tests from McPhail v Doulton.There was a real question whether ‘families in need’ was criterion certain. Discussion ofwhether ‘family’ and ‘in need’ were objectively definable terms was necessary. Theanalysis was more important than the conclusion. Further, if the term was criterioncertain, the clause may not have been administratively workable. With only $5000 todistribute, and given the size of Victoria’s population, it would seem unworkable. Weexpected some discussion of the West Yorkshirecase. If the trust was not a valid trust for people; could it be saved as a trust for charitablepurposes? Discussion of Pemsel’s case and the modern definition of a trust for charitable purposeswas necessary. This could be viewed as a trust to relieve poverty or as a trust under the4thhead. It was necessary to discuss the requirement for public benefit, and whether apoverty 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. Moststudents identified Saachi’s breaches.
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Dr Susan Barkehall Thomas
Wills and trusts, Trust law, NewWays, Weerasinghe trust