General merebare powers o anyone in the world this is

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-General mere/bare powerso‘anyone in the world’. This is semantically certain-Hybrid mere/bare powers–’oanyone in the worldexceptA, B and C’. Apply test to the class ‘A, B and C’oApply test to the exclusion. Must be able to saywith certainty, who isexcludedoEg if exclusion = to my favourite students. That would fail. Can’t say who myfavourite students-Special mere/bare or trust powersoto any of ‘X, Y and Z’. Apply test to the class ‘X,Y and Z’.-Subjective requirements (of the trustee?) will befataloMust have enough guidelines so that it is not subjectiveoThat’s because if trustee can’t do the job, the court can’t eitheroEgfavourite law student’§Verysubjective§Semantic uncertainty re ‘favourite’oEg might be ‘my favourite student as determined by who I gave HDs to in2017’§Would narrow it down. Not subjective?-InGulbenkian,Lord Upjohnsuggested the term ‘my old friends’wouldbe uncertain,ounless there wassome special meaningassignedto the term by thesettlor/testator.oEg ‘my old friends which means anyone I went to uni with in 2003’o‘or my old friends identified by my Rabbi’-Certainty can’t come from other evidence normally
114oMore leewaywithwills and intervivovsdocuments butmust be obvious onthe words oroin the context of the whole document as a general rule-Void for uncertainty of object, because there is no semantic/linguistsic certainty4.STEP 2:Factually,is X within that class?-Evidentiary certainty-Court can always give directions about what evidence is neededoNot crucial-Eg whoever takes the 98 tram.oHard to prove if someone has been on the tramoWe know what the words mean, just difficult to know who has been on thetram-Evidentiary uncertainty won’t make the clause invalidoCourt must give directions for what evidence to rely onoCourt may say ‘trustee can rely on myki evidence’o‘trustee can rely on statutory declarations’Administrative unworkability-So hopelessly wide as not to form anything like a class-McPhail v Doultonobiter that ifthe class was too wide, the powermight be voidbecause it is administratively unworkable.-Eg “Greater London”oSemantically certain-Why would anextremely wide trust power be unworkable?oNeed to know who has standing to enforce exercise of poweroDonee of powerneeds to be able toundertake an adequate survey of class,in order to properlyexercise power (because the power has to be exercised)oIf the only decision they have is to distribute property out of a class, how tomake a sensible decision when class size is 250,000?§If no other guidelines in the trust instrument, risk: any decision courtmakes is going to look completely arbitrary, unguided. Administrationof justice into disreputeR v District Auditor No 3 Audit District of West YorkshireFacts:-“Thepurposes of the Trustare toapplyandexpend the Trust fundfor thebenefitofany or all or some of the inhabitants of the County of West Yorkshirein one ormore of the following (4) ways”-Population: 2.5 millionHeld:-Discretionarytrust power-

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Term
Three
Professor
Dr Susan Barkehall Thomas
Tags
The Bible, Wills and trusts, Trust law

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