CREATION OF TRUST

The Validity of the Dispositions

NADRA FATIMA MANNAN NAWAL AQILAH BAHARUDIN IZZAH ZAHIN ALIMAN

Q1. RM 1 million for the benefit of those diehard fans of Justin Bieber who are wearing red shirt every Thursday
Invalid: The objects (beneficiaries) are incapable of being rendered certain Re Chionh Ke Hu [1964] 1 MLJ 131 I direct my executor to distribute the remaining thirty shares among such person professing or practising the Buddhist religion the objects is not limited as to the locality or area from which such persons may be chosen throughout the whole world which impossible to be ascertained. Hence, it is impossible to identify every each or even make a complete list of all Justin Biebers diehard fans specifically who are wearing red shirt every Thursday throughout a country what more the whole world! Besides that, every Thursday is also to be vague and uncertain to its perpetuity for there every Thursday a year is (4 weeks x 12 months) = 84 Thursdays

Q2. to be at her disposal in any way she may think best, for the benefit of herself and her family. (but gave to persons outside family)

Lambes v Eames (1871) LR 6 Ch 597 to be at her disposal in any way she may think best, for the benefit of herself and her family What is required is an intent to require the holder of property to carry out the settlor's wishes as opposed to a mere moral or honourable obligation Invalid trust. Gift

Q3. Roger has transferred to Riley RM 100,000 to be distributed to all inhabitant of Sungai Pusu
Valid Object of trust? Re Chionh Ke Hu [1964] 1 MLJ 131 McPhail v Doulton [1971] AC 424 - class ascertainableness/given postulant test inhabitants conceptual uncertainty (human/animal?) evidentiary uncertainty (resident-temporary, perpetual?)

Q4. to give bulk of his estate to the person who helped him
Palmer v Simmonds (1854) 2 DREW 221

- testatrix left the bulk of my residuary estate on trust - Bulk- something that bulges out; not the whole but greater part of it - no trust as the word bulk was uncertain - For trust to be valid, settlor must made the subject matter of trust is certain - person who helped him uncertain object

Q5. secure in the knowledge that before her death, anything she has that came from me she will leave to such of my relatives and such of those persons she knows to be my old friends as she should think fit

Need to determine object with certainty IRC v Broadway Cottages Trust [1955] Ch 20 - a discretionary trust would fail for lack of certainty of objects if a complete list of the potential beneficiaries could not be drawn up

 McPhail v Doulton [1971] AC 429 / Re Baden's Deed Trusts (No 1) - Mr Baden establish a trust for the benefit of the staff of his company, their relatives and dependents. He granted absolute discretion to the trustees to distribute the trust fund as they saw fit. despite their absolute discretion to select the beneficiaries, trustees were not at liberty to refuse to carry out the trust - to be valid, a discretionary trust had to specify an ascertainable class of cestuis que trust -abandoning the "complete list" test in favour of an "is or is not" test - relatives = descendants from common ancestor / nearest blood relation dependents = partly @ wholly dependent on someone else

 Re Barlows Will Trust [1979] 1 WLR 278 applied McPhail (a) whether the direction to allow members of the family and friends to purchase the pictures is void for uncertainty since the meaning of the word friends is too vague to be given legal effect; (b) what persons are to be treated as being members of the testatrix's family. friend (a) the relationship must have been a long-standing one. (b) The relationship must have been a social relationship as opposed to a business or professional relationship. (c) Although there may have been long periods when circumstances prevented the testatrix and the applicant from meeting, when circumstances did permit they must have met frequently family next of kin, related by blood great niece (beneficiary) trust was valid, because both concepts of friends and family could be given a workable meaning Halsburys Laws of Malaysia - if list of every member of the class cant be drawn up, it suffices if it can be proven that he/she is part of the class Valid. A discretionary trust subject to conditions precedent

TESTS RELATING TO CERTAIN OBJECTS

NATURE OF TRUST FIXED TRUST FIXED TRUST: SUBJECT TO CONDITION PRECEDENT DISCRETIONARY TRUST FIDUCIARY POWER TEST COMPLETE LIST ONE PERSON SATISFIES CONDITION CONCEPTUAL CERTAINTY / X EVIDENTIARY CENTAINTY / X

ANY GIVEN INDIVIDUAL ANY GIVEN INDIVIDUAL

/ /

X (?) X (?)