The picture of certainty becomes very clouded when trying to determine whether certainty of objects exists in practice. In simple terms, problems with certainty of objects arise in relation to three distinct concepts. First, there are “fixed trusts”, being trusts where the trustees have no discretion as to whom benefits under the trust are to be given or in what shares; both the share and the right of the beneficiaries to that share are fixed by the settlor. Secondly, the issue will arise where there is no trust at all and it is in fact a power of appointment. A power of appointment is a power given to a person to distribute property amongst such person within a named class as the person exercising the power chooses, in such shares as he chooses, or not at all. It differs from a discretionary trust in that a donee of a power has no duty to distribute the property at all and may legitimately make no selection. Thirdly, and is the case in the present scenario, there are discretionary trusts, being trusts where the trustees have a duty to distribute the trust property, but a discretion as to whom within a particular class shall actually benefit and in what share.
The test that must be applied is whether it is possible to say with certainty whether any given person is, or is not, a member of the class. Unfortunately, although this test is easy to state, it is difficult to apply because the leading case on its application gives three alternative approaches[9]. According to Stamp LJ, the test is satisfied only if it is possible to say in fact whether any given person is, or is not, a member of the class and this requires both the class to be defined with precision and there to be enough evidence available to make a positive or negative choice in respect of all of the potential applications. This is a strict test and it is therefore unlikely that on this basis this gift would succeed as Henry has said that the memorabilia should go to anyone as Gwen sees fit and it is not clear what requirement will satisfy the requirements, indeed it is not even clear which requirements need to be satisfied. It is likely that the gift would fail. The second approach is to that the test is satisfied if it is possible to say, in theory, whether any given person is, or is not, a member of the class, irrespective of whether there is enough evidence to make such a decision. The class must be conceptually precise. It is unlikely that Henry’s gift will meet this requirement and therefore again on this approach the gift will fail. We have no indication how broad or how big this class of people is and what pre requisites will make Henry’s relatives fall into this particular class. If it was indicated that all of Henrys’ relatives with brown hair or below the age of 16 should benefit then this class of person would be at least conceptually clear.
