This maybe a basic question but nevertheless one that i am struggling with.
When deciding certainty of intention of a disposition, and it is clear that a trust has not been intended to be created by the testator in what situation would a power of appointment be conferred over an absolute gift (resulting in a resulting trust going into the residuary).
I'm writing my coursework and in my opinion a trust has not been intended for certainty of intention but there are also clear problems with certainty of subject and objects in the disposition too and I wish to discuss this in my answer. So would I say a fiduciary power of appointment has been created and then go on to discuss subject matter and objects in relation to a power of appointment?
Thanks for any help
Certainty of Intention - Power of Appointment or absolute gift Watch
- Thread Starter
- 26-12-2010 00:17
- 28-12-2010 11:54
I'm not sure I completely understand the question, so this may be off track, but ... The first issue is whether it is an absolute gift, or a gift subject to an enforceable restriction making the holder a trustee. If the latter, and the trustee has been given a power over it rather than creating a fixed trust, then is this a trust power (power + duty to exercise) or a "mere" (fiduciary) power (power with no duty to exercise, although duty to consider etc.). So when you say that a trust has not been created, do you mean that you think the whole disposition was an absolute gift, or that you think the settlor was creating a mere power rather than a trust power?