Property law assignment about Certainty of objects in discretionary Essay

Property law assignment about Certainty of objects in discretionary trusts - Essay Example The case of McPhail decided on the essential element of the ‘is or is not’ test and the important points that were made were that the courts that is the fact that the ‘is or is not’ test deals with conceptual certainty and the fact that that the ‘the court is never defeated on the basis of evidential certainty’. The decision is said to be the key case in this respect because the problem on the ‘is or is not’ test in respect of the broad list was considered. The essential problem in respect of certainty of objects was that the is or is not test needed be clearly spelled out in respect of such lists. This was because the trusts with such lists would fail for uncertainty of objects and thus the principle needed establishment, which was clearly done by the important decision in McPhail and a demarcation and principle in respect of such lists was clearly identified. 2. Explain the background to the Court of Appeal decision in Re Badenâ⠂¬â„¢s DT No.2, and its lasting significance. (500-600 words) The issue in this question requires an analysis of the background of the case in respect of Re Baden’s DT No.2. ... The trust in this case was about, amongst others, employees and their ‘dependants’ and ‘relatives’. The court stated that ‘dependants’ was not uncertain and the reasoning for this was that the Parliament had used it often whereby it had described dependants. However, there were issues in respect of ‘relatives’ whereby differences in interpretation arose. The meaning that was normally ascribed to relatives was descendants who originated from common ancestors thereby discussing the indefinite and large number of distant relatives. It was discussed at length that the common ancestor was not a conceptual uncertainty and the problem lied in respect of the evidential uncertainty that is the problem of proving the connection. In the case of Re Baden there was property which had been left "to or for the benefit of any of the officers or ex officers or ex employees of the company or to any of the relatives or dependants of any such persons". The applicant argued that for identification of the beneficiary it was important the each and every individual should be identified so as to ensure the question of whether they were a class or not. The respondent argued to the contrary and stated that this was not necessary to identify each and every individual and therefore the trust should be held to be valid and should not fail on the basis of uncertainty of objects. It was further argued that if the class was not considered and the trust was held to be failed then it would be contrary to the wishes of the settler as the reason for such a broad class was the intention of the settler and he could have clearly narrowed the class if he wanted to and therefore the settler had clearly by writing the words had taken