This chapter discusses the objective boundaries of discretionary powers and the way in which the courts police them. Inherent in all discretionary power is the power to decide freely, whether rightly or wrongly, without liability to correction, within the area of discretion allowed by the law. Until fairly recently this liberty to make mistakes within jurisdiction extended to significant mistakes both of law and of fact. The extent to which both these classes of error have been brought within the scope of judicial review is explained.
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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.
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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.
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Mark Elliott and Jason Varuhas
This chapter examines the scope of judicial review as it applies to the principles of public law. It first explains why discretionary powers conferred by legislation are not always subject to judicial review before discussing prerogative powers and their amenability to judicial review. It then considers justiciability as the limiting factor in the extent to which the in-principle reviewability of the prerogative is of any practical significance. It also examines issues regarding de facto powers, with particular emphasis on the scope of judicial review, the limits of review and its underlying rationale, and the extent to which contractual arrangements may displace the courts' willingness to review. Finally, it explores which public bodies must respect human rights under Section 6 of the Human Rights Act 1998. A number of relevant cases are cited throughout the chapter, including R v. Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815.
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The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans, suggested answers, and author commentary. This book offers advice on what to expect in exams and how best to prepare. This chapter covers questions on trusts, powers, and discretionary trusts.
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Administrative authorities deciding someone’s legal position must determine what the law is, and find the facts, and apply the law to the facts. This chapter asks how the courts control the exercise of power involved in each of those three elements of the application of the law. The chapter explains the famous decision of the House of Lords in the Anisminic case, and explains why that decision does not support the doctrine of ‘review for error of law’, which is commonly thought to have been established in Anisminic. The chapter explains why a power to apply the law is a discretionary power and concludes with a discussion of the fundamental union (downplayed and sometimes denied by the judges) between judicial review for error of law and other forms of control of discretionary power.
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Administrative authorities deciding someone’s legal position must determine what the law is, and find the facts, and apply the law to the facts. This chapter asks how the courts control the exercise of power involved in each of those three elements of the application of the law. The chapter explains the famous decision of the House of Lords in the Anisminic case, and explains why that decision does not support the doctrine of ‘review for error of law’, which is commonly thought to have been established in Anisminic. The chapter explains why a power to apply the law is a discretionary power, and concludes with a discussion of the fundamental union (downplayed and sometimes denied by the judges) between judicial review for error of law, and other forms of control of discretionary power.
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Mark Elliott and Jason Varuhas
This chapter discusses the principles of administrative law which require decision-makers to retain the discretion which they are granted. It first considers the question of delegation of discretionary powers as well as the non-delegation principle before explaining the nature of delegation. It then examines the courts' approach with respect to departmental decision-making in central government and how far the discretionary freedom of the decision-maker designated by statute may be constrained by delegation and the adoption of policies. It also shows why it is often desirable or even necessary for decision-makers to exercise their discretion in line with a policy or a set of criteria. Finally, it looks at judicial moves towards ensuring that exercise of discretion is structured and legally constrained by publicly available policy. A number of relevant cases are cited throughout the chapter, including Barnard v. National Dock Labour Board [1953] 2 QB 18.
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Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the powers and obligations of trustees, the most important of which are the duty of investment and the powers of maintenance and advancement. The power of maintenance enables a trustee to spend income, but not capital, for the benefit of infant beneficiaries, i.e. those under 18. The power of advancement is the power to expend the capital of the trust fund to benefit a beneficiary who has only a future or contingent interest in it. The discussions also cover the appointment, retirement, and removal of trustees; custodian, nominee, managing, and judicial trustees; and variation of trusts.
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Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter explores the features of express trusts, with a focus on powers. The discussions cover fixed trusts, discretionary trusts, and powers of appointment; the variety of interests under express trusts; the kinds of powers and duties under a trust; faulty exercises of powers; judicial control of the exercise of discretions; and limitations on the settlor’s ‘freedom of trust’.
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This chapter sketches some of the recurrent themes that run through the equitable mechanisms of fixed and discretionary trusts and powers of appointment. It considers the matter of beneficial entitlement and ownership, which raises questions regarding the nature of the rights in the fund enjoyed by the potential objects of allocation. Next, the chapter shows how trusts must be for the benefit of legal persons and not merely for the object of carrying out purposes. Although purpose trusts are not, as a general rule, valid, it is often the case that owners wish to allocate their property to purposes rather than to specific individuals. The law provides that certain purposes are charitable and gifts and trusts for these purposes are valid, even though there are no beneficiaries as such. The chapter also discusses certainty and the duty to act even-handedly.
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This chapter sketches some of the recurrent themes that run through the equitable mechanisms of fixed and discretionary trusts and powers of appointment. It considers the matter of beneficial entitlement and ownership, which raises questions regarding the nature of the rights in the fund enjoyed by the potential objects of allocation. Next, the chapter shows how trusts must be for the benefit of legal persons and not merely for the object of carrying out purposes. Although purpose trusts are not, as a general rule, valid, it is often the case that owners wish to allocate their property to purposes rather than to specific individuals. The law provides that certain purposes are charitable and gifts and trusts for these purposes are valid, even though there are no beneficiaries as such. The chapter also discusses certainty and the duty to act even-handedly.
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A person can make a conditional gift or make a gift subject to a charge. One example of an expressly created trust is a transfer of property to one person on trust for another. That property owners can dispose of their property as they choose can be a source of great uncertainty. ‘Three certainties’ must be satisfied before a court will acknowledge that a settlor or testator has created a private express trust: certainty of intention to create a trust, certainty as to the subject (property) of the trust, and certainty as to the object (beneficiaries or purposes) of the trust. This chapter, which deals with expressly created trusts, first considers the capacity to create a trust before turning to trusts established for private purposes, donations to unincorporated associations, and the construction of dispositions.
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Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter considers express trusts, which are flexible devices for structuring the benefits that property can provide, particularly in ways that are impossible or inconvenient to do simply by making an outright gift. The discussions cover fixed trusts, discretionary trusts, and powers of appointment; duties and powers virtute officii (powers given to office holders), personal powers (powers nominatum), powers ‘in the nature of a trust’, fiduciary powers, bare and mere powers; interests under fixed trust; the principle in Saunders v Vautier; trusts void on grounds of public policy and illegal trusts the rule against perpetuities; the enforcement and judicial control of discretionary trusts and powers of appointment; excessive and fraudulent exercises of powers; interests under discretionary trusts and powers of appointment; locus standi to enforce the trust and beneficiaries’ rights to information, and protective trusts.
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Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on modern discretionary trusts (MDTs), in which property is typically distributed by way of powers of appointment, not by the trustees’ distributing property under fixed or discretionary trusts. It identifies common features of MDTs, including letters of wishes and protectors. Next, doctrinal developments which contributed to the development of the MDT are considered. Following that, the standing of objects to enforce the MDT and rights to information are examined. Finally, broader issues concerning how MDTs fit in with the broader law of trusts are taken in turn: MDTs and the law of charities; determining the ‘true intended beneficiaries’; Saunders v Vautier issues; the status of letters of wishes, and MDTs as ‘chameleon trusts’.
