LAW 2502 Lecture Notes - Lecture 2: Beneficiary Principle, Legal Personality, Christopher Slade
23 May 2018
School
Department
Course
Professor
ADELAIDE LAW SCHOOL LAW2502 EQUITY
David Wright
Week 3, Semester 1, 2018
Trusts Summary (Part Two)
6. Certainty of Objects
A. Introduction
A trust MUST be created either in favour of any legal person to whom a gift can legally be made,
or for charitable purposes.
B. Necessity for certainty of objects
In Australia, the objects or persons to be benefited by a trust must be expressly designated or so
defined that they are capable of being ascertained, except where the trust is for charitable
purposes.
C. Certainty of objects for a trust for persons.
i. Introduction
The need for a beneficiary is known as the beneficiary principle and it comes from Morice v
Bishop of Durham. There are two sorts of express trusts, 1. fixed trusts, and 2. discretionary
trusts
ii. Fixed Express Trust
Test known as the ‘list certainty’ test but see West v Weston.
iii. Discretionary trusts and Certainty of Objects
McPhail v Doulton the ‘criterion certainty’ (also known as as the ‘in/out’, conceptual, ‘linguistic’
certainty test) and administratively unworkable.
iv. Trusts for unincorporated associations
An unincorporated association, because it is not a legal person and is therefore not capable of
having an interest in property, is not a legal person. So it can’t be a beneficiary of a trust. But the
legal system tries to have such trusts made valid, but presumption per Bacon v Pianta (1966) 114
CLR 634 but the attempt to make such trusts work can fail, per Leahy v A-G (NSW) (1959) 101
CLR 611. But see Associations Incorporation Act 1985 (SA)).
D. Certainty of Objects and Charitable Trusts
i. Introduction
In Australia, this is the big exception to the beneficiary principle. Such trusts are enforceable by
the AG
What is a charity? Which purposes are charitable purposes?
ii. What are Charitable Purposes?
Obviously it is beneficial to be a charitable trust. This is defined in two ways.
1. the Charities Act 2013,
2. the traditional way. To define a charity, courts have been guided by the Preamble to the Statute
of Charitable Uses 1601 (as refined in Pemsel’s case [1891] AC 531). This gives a list of four
general charitable purposes. They are; 1. Relief of poverty, 2. The advancement of education, 3.
advancement of religion, or 4. other purposes beneficial to the community. To have a charitable
trust, the trust must satisfy one of these heads of charity and there is another requirement. This
is the trust must have a public benefit.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Trusts summary (part two: certainty of objects, introduction. A trust must be created either in favour of any legal person to whom a gift can legally be made, or for charitable purposes: necessity for certainty of objects. The need for a beneficiary is known as the beneficiary principle and it comes from morice v. There are two sorts of express trusts, 1. fixed trusts, and 2. discretionary trusts: fixed express trust. Test known as the list certainty" test but see west v weston: discretionary trusts and certainty of objects. Mcphail v doulton the criterion certainty" (also known as as the in/out", conceptual, linguistic" certainty test) and administratively unworkable: trusts for unincorporated associations. An unincorporated association, because it is not a legal person and is therefore not capable of having an interest in property, is not a legal person. So it can"t be a beneficiary of a trust.
