After this ruling, the executioners of this trust appealed and the case was returned to the lower courts where the Lords offered a different perception of the object ascetainity principle. The executors of this trust required the court of appeal to assess if the words stated in the trust were actionable enough to validate the trust1. In this case, the three different judges ruled that the trust was valid since the beneficiaries of the trust could be ascertained by examining the “dependents” and the “relatives” whom the settlers had regarded as his beneficiaries.This trust established by Baden can be categorized as a discretionary considering the obligation of it grants to the trustee of determining who the beneficiaries of the trust are. In the English Law two distinct classes of trusts may be identified depending on the obligation or the power granted to the trustee. One of the trust schemes is the express trust in which the settlor leaves property and a list of the beneficiaries who are supposed to share the so left property. This trust is rigid and the obligation of the trustee is to share the property among only the members inside the list that is provided by the debtor. The second category of trust scheme is the discretionary trust in which the settler leaves property but does not provide any formal list of beneficiaries. In this case, the trustee is left with the responsibility of determining the beneficiaries of the trust, through his own discretion. According to Natasha, the flexibility that this kind of trust offers is accompanied with a hard task of determining the individuals who fall under the specified class of beneficiaries. 2 The argument of this author is that the fact that there exist no clear cut boundaries between different classes of beneficiaries, then it is a challenge for the trustee to select the specific beneficiaries.The structure of the discretionary of trust is based on the capacity of the trustee to make a credible appointment among the specified classes of beneficiaries. In other words, the settlor provides the trustee with the fiduciary power to select, on the principle of care and loyalty, individuals who deserve a share of the property left in his custody by the settlor. The duty of care requires that the trustee uses the granted power to act in the best interest of the settlor in assigning the property so provided. This principle hinders
Klinck D, McPhail v Doulton and Certainty of Objects: A semantic Crictism. (2002).
< http://www.rdo-olr.uottawa.ca/index2.php?option=com_sobi2&sobi2 Task=dd_ download&fid=427&Itemid=789> Accessed on 12th Sept, 2013.
Natasha C, Discretionary Trusts: Mere Power Too Meagre to Stand? (2009)
< http://www.applebyglobal.com/articles-2009/discretionary-trusts-by-natasha-clark.pdf> Accessed on 12th Sept, 2013.
Rahmjohn M, Texts, Materials on Equity and Trusts 4/E. (1st Edn, Routledge 2008) 111-120.
Thomas G, Thomas on Powers. (1st Edn, Oxford University Press 2012) 75.
Wilson S, Todds and Wilson’s Textbook on Trusts. (1st Edn, Oxford University Press 2007) 113-147
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