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Three Certainties, focus on precatory or imperative words- now greater…

- - - - distinct and definable
      - obligation
    - - phrases such as 'in the hope that', 'with the desire that', beseeching you
      - wish or desire property used certain way
- - - - differences between flock of sheep
    - - lump sum of money eveything the same
      - Hunter v Moss if truly homogenous don't need to seperate - shares all same
      - Lehman Bros v CRC no segregation of truly homogenous - company negligent in failing to separate - still arose despite lack of segregation
      - global trade europe - need to segregate for there to be a trust
- - - - England
        
        traditional test in IRC v Broadway Cottages comprehensive list needed
        
        McPhail v Doulton adopted test for mere powers, not practical or necessary to insist on complete list of beneficiaries (may not even be desirable for 100 plus beneficiaries)
        
        Baden Deed Trust up to beneficiaries to identify themselves
      - Ireland
        
        Re Parker comphrehensive list test still favoured - essential to know who beneficiaries are before can perform duty - approved broadway in Ireland
        
        O'Byrne v Davoren acknowledged english approach, but content with comprehensive list test - often similar to facts of problem question
        
        testatrix will provide residue should be held on trust for post primary education of class consisting of children, grandchildren and direct descendants - trustee decide in discretion whom ost likely to benefit- judge satisfied sufficiently certain - prefered Parker over McPhail - courts should endavour to resolve any ambiguities and uncertainties
        
        still follows Broadway
    - - West Yorkshire Metropolitan county council discretionary trust in favour of all inhabitants of West Yorkshire, no trust as too wide to form a class
  - - - complete list test (class ascertainability rule)
        
        be clearly identified or identifiable when comes into being
        
        OT Computers must be able to identify each beneficiary
        
        trustee must be able to compile complete list of all beneficaries
  - - - not necessary comphrensive list drawn up - does the person come within description of class
      - can only distribute to individuals specificed
      - Bayley donee doesn't need to keep in mind every person capable of taking under the power
      - Re Gulbenkian settlement trust individual ascertainability test - is or is not test - trust calid if can be said with certainty if an individual is in the class or not