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Paper Topic:

Law - Equity and trust

In re Gulbenkian 's Settlements [1970] A .C . 508 , as cited by the Lord Wilberforce In re Baden 's Deed Trusts (H .L (E )

. 451 , there was given the clear indication of distinction between the kind of certainty required for powers and that required for trusts . For the purpose of In re Baden 's Deed Trusts (H .L (E ) case it was material to state the exact nature of that distinction . The said case as well as In re Gulbenkian 's Settlement[1970] are the most instructive to our question cases so I

will dwell on them making direct conclusions and citing , while also noting the other relevant cases

In re Baden 's Deed Trusts (H .L (E

The appelants , Robert Thomas Mitchell McPhail , Enid May Baden (widow and Raymond Rostron Baden , submitted that upon the true construction of a deed dated July 17 , 1941 , the provisions of clause 9 (a ) thereof constituted a power and not a trust

It was witnessed that trustees defined should hold property (the fund upon trusts therein set forth including a trust (p . 427 ) under which income was to be applicable for transfers (grants ) at the absolute discretion of the trustees

For determination whether transfers as a grants or for the benefit of officers and employees and ex-officers and ex-employees of the company and any relatives or dependants of such persons were (a ) valid or (b void for uncertainty or for any other reason the proceedings ' the proceedings were commenced in the High Court by an originating summons dated January 14 , 1963

The summons were heard and the decision delivered that , inter alia clause 9 (a , which to be sumbitted below , constituted a power and not a trust and that on this footing clause 9 (a ) was valid . The Court of Appeal upheld the said decision in favor of a power but held also that the judge had applied the wrong test for the validity of powers (p . 429 , reffering to the righteous test being stated In re Gulbenkian 's Settlements [1968]

The most relevant clauses of the deed were as follows "6 (a ) All moneys in the hands of the trustees and not required for the immediate service of the fund may be placed in a deposit or current account with any bank or banking house in the name of the trustees , or may be invested as hereinafter provided "9 (a ) The trustees shall apply the net income of the fund in making at their absolute discretion grants to or for the benefit of any of the officers and employees or ex-officers or ex-employees of the company or to any relatives or dependants of any such persons in such amounts at such times and on such conditions (if any ) as they think fit and any such grant may at their discretion be made by payment to the beneficiary or to any institution or person to be applied for his or her benefit and in the latter case the trustees shall be under no...

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