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#certainties #equity #law
However, McPhail held that the test for certainty of objects in a discretionary trust is the ‘is/is not test’, not the ‘list test’. Lord Wilberforce set out his reasons for adopting the ‘is/is not test’ rather than the ‘complete list test’. He said that in executing the trust, the court should try to give effect to the settlor’s intentions; equal division would often not be the most appropriate method for this type of trust (although it might be for a ‘family’ trust in favour of a limited class). Although the trustees have a duty to consider the range of possible beneficiaries and select from the class, this does not mean that ‘they must have before them, or be able to get, a complete list of all possible objects’. Generally, a settlor intends to benefit an inner (or core) category of beneficiaries and not the outer category. In executing the trust according to the settlor’s intentions, distribution may be made unequally and it may exclude some (or most) of the class. Lord Wilberforce regarded discretionary trusts as, in essence, trust powers (powers that must be exercised) which should be subject to the same certainty test as mere powers of appointment (that may or may not be exercised), both types of powers being capable of being exercised unequally.
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