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Chapter

Sir William Wade and Christopher Forsyth

This chapter examines the rules which govern discretionary power. It focuses on the rules which ensure that discretionary power should be wielded only by those to whom it is given and that they should retain it unhampered by improper constraints or restrictions. Topics discussed include delegation; surrender, abdication, dictation; over-rigid policies; restriction by contract or grant; and estoppel.

Chapter

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter on trusts and powers discusses the following: the different types of trust and powers; power (mere or bare or personal); fiduciary power; trust power (trust in default of appointment); discretionary trust (sometimes called a trust power or power in the form of a trust); the certainty of intention, certainty of subject matter, and certainty of objects; administrative unworkability; certainty of objects in conditional gifts; and the effects of absence of the three certainties.

Chapter

Sir William Wade and Christopher Forsyth

This chapter examines the sovereign principle that powers must be exercised reasonably and in good faith and on proper grounds — in other words, that they must not be abused. This is one of the twin pillars that uphold the structure of administrative law. Topics discussed include the justification for review on substantive grounds; the rule of reason; the principle of proportionality; categories of unreasonableness; mixed motives and good faith; and statutory reasonableness.

Chapter

This chapter discusses the trustees’ powers of maintenance and advancement. The powers of trustees can be divided into two categories: management powers and distributive powers. Management powers are those which relate to looking after the trust property, for instance, investing a fund or insuring a property. Distributive powers are those which relate to deciding who benefits. Generally the decision as to benefit will have been made by the settlor, by creating a fixed trust, by giving the decision to trustees through a discretionary trust, or by conferring a power of appointment on the trustees or a third party. In addition to this, however, there are some instances where trustees can make a decision as to who benefits from a trust fund, even where not expressly provided for by the settlor.

Book

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This book deals with the emergence of equity and how it differs from the common law. The trust concept is explained and the different types of trust that exist outlined. These include resulting, constructive, and charitable trusts. Trusts must obey certain basic rules such as legal formalities and the three certainties of intention, subject matter, and the need for a beneficiary. There are exceptions to these strict rules, such as proprietary estoppel and certain gifts made upon death, for example secret trusts and donatio mortis causa. The office of trustee is considered, including the methods of appointment; their powers of maintenance, advancement, variation, and investment; and the fiduciary nature of their office. Equitable remedies, such as injunctions, specific performance, and tracing are included. The use of constructive trusts in cohabitation disputes is analysed.