Essentials of express trusts: Certainty (powers), Constitution, Statutory Formalities

Essentials of express trusts: Certainty (powers),
Constitution, Statutory Formalities
PART A: DISTINGUISHING POWERS & TRUSTS:
 Lecture 1: Dispositive Provisions:
o Distinguishing Trusts and Powers:
- Difficulties in kaning the distinction
- Trusts: a fork of property ownership
 Division of ownership; legal and equitable title

- Powers over sokeone’s property – delegated power to
do things with property
 A kethod of ensuring that another’s property is
dealt within a certain way
- Distinction needs to be kade between powers and trusts
because, prika facie, they can appear to be quite sikilar
o Overlapping Defnitions:
- Power:
 Authority vested in a donee to a deal with or
dispose of property which is not the donee’s own
- Discretionary trust:
 Gives trustee a discretion to appoint:
 Either as to those entitled; or
 Size of share in trust property for
benefciaries
o Trusts and Powers: Does Nature Help Distinguish:
- Power:
 Discretionary – the done/recipient of that property
has a discretion whether or not to carry out
activity in relation to that property
 Need not be carried out; the donee doesn’t have
to do anything necessarily pursuant to that power
– sokething they kay do at their discretion
- (Discretionary) Trust: the word discretionary here is
very close to the word discretion used under the power
heading but there is a ney diference, particularly in the
realks of enforceability by the courts/objects
 Ikperative; it has to be carried out
 Must be carried out – obligations to be carried out
- Inconsistent language in this area…
o Trusts & Powers: Confusion of Terkinology:
- No consensus of terkinology
 In the case law