F3:2.1: CERTAINTY OF OBJECTS & DISCRETIONARY TRUSTS 1. Introduction: The Purpose of the Certainty of Objects Requirement

- For a Trust to exist, A must: (i) hold a specific claim-right or power; and (ii) be under a duty to B not to use that claim-right or power for A’s own benefit (unless and to the extent that A is also a beneficiary of the Trust). In other words, for a Trust to exist, A must be under the core Trust duty. The certainty requirements for a Trust simply reflect the fact that A must be under a duty to B in relation to a specific right. The certainty of objects requirement ensures that: (i) A owes a duty to a specific person; and (ii) A’s duty is certain enough to be enforced. The certainty of objects requirement can
Sachs and Megaw LJJ both dealt with that point by saying that the onus is on X to prove that claim; until X does so, it must be assumed that X does not share an ancestor with A0.6 The approach of Sachs and Megaw LJJ (assuming X is out of the permitted class, unless and until X can show otherwise) seems to make the “any given person” test redundant. For example, if A0 tries to set up a discretionary Trust in which A has a power to distribute the benefit of a right to anyone who is a “good person”, we might expect A0’s attempt to fail: there is no way for a court to tell if X is or is not a “good person”. However, on the approach of Sachs and Megaw LJJ, we could instead say that the discretionary Trust is valid – it is just that, if X cannot prove he is a “good person”, it will be assumed that he is not such a person. It seems that neither Sachs LJ nor Megaw LJ wanted to leave the law in such a way as to permit there to be a discretionary Trust in favour of anyone who is a “good person”. So each judge added a further certainty requirement. Sachs LJ stated that the class of those to whom A can distribute the benefit of A’s right must be “conceptually certain”: that is, it must be possible to come up with a definition of the class.7 Practical, evidential problems as to whether X is or is not within that