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LA3002 · Zone A · 'The tests for certainty of objects differ between fixed and discretionary trusts, yet the case law has left the boundaries of each in an unsatisfactory state.' Critically evaluate this statement with reference to authority.
Introduction
Introduce the distinction between fixed and discretionary trusts and the tests for certainty of objects, and outline the argument that the boundaries are unsatisfactory.
- •Explain the importance of certainty of objects in trust validity.
- •State the different tests: fixed trusts require complete list (IRC v Broadway Cottages), discretionary trusts require 'is or is not' test (McPhail v Doulton).
- •Foreshadow the critique: the case law has blurred the lines and left uncertainty.
Issues to resolve
1. Fixed trusts: the complete list test
For fixed trusts, trustees must be able to identify every beneficiary, as they have no discretion and must distribute to all.
2. Discretionary trusts: the 'is or is not' test
For discretionary trusts, the test is whether it can be said with certainty whether any given individual is or is not a member of the class.
3. The blurred boundary: fiduciary powers and administrative unworkability
The distinction between discretionary trusts and powers has become blurred, and the concept of administrative unworkability adds further uncertainty.
4. The 'given postulant' test and conceptual certainty
The requirement of conceptual certainty has been interpreted differently, leading to uncertainty about the boundaries.
💡 Examiner tip
The examiner wants to see a critical evaluation that engages with the case law and demonstrates an understanding of the practical and theoretical tensions between the tests.
AI Essay Marking
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LA3002 · Zone A · 'The tests for certainty of objects differ between fixed and discretionary trusts, yet the case law has left the boundaries of each in an unsatisfactory state.' Critically evaluate this statement with reference to authority.
Certainty of objects is one of the three certainties
needed for a valid trust, as set out in Knight v Knight.
It means the beneficiaries of the trust must be certain.
Third
Pass
45 → 68 on the same questionError of law caught
“Now the test for both fixed and discretionary trusts is the 'is or is not' test”
✓ In fixed trusts, trustees must be able to draw up a complete list of all beneficiaries (IRC v Broadway Cottages). The 'is or is not' test was introduced for discretionary trusts in McPhail v Doulton, but it did not change the test for fixed trusts.
The one change that lifts the grade
The single highest-impact change is to stop describing the law and start evaluating it: engage with the criticisms of the is or is not test, the problems of conceptual uncertainty, and the debate over whether the boundaries are satisfactory. This would move your answer from a Third to a 2:1.
Missing authority: Re Baden's Deed Trusts (No 2) [1973] Ch 9 (CA) · Re Tuck's Settlement Trusts [1978] Ch 49 · Re Manisty's Settlement [1974] Ch 17
Study Planner
A week-by-week plan, counting down to your exam.
October 2026 sitting
—
3 modules · 15 hrs/week
High-probability topics first
Week 1
26 Aug – 1 Sept
- · Criminal Law — Attempt — More than Merely Preparatory
- · Criminal Law — Consent — Sexual Offences
- · Criminal Law — Consent, Assault
- · Criminal Law — Loss of Control
- · Criminal Law — Self-Defence, Prevention of Crime, Duress, Necessity
Week 2
2 Sept – 8 Sept
- · Criminal Law — Theft, Burglary
- · Criminal Law — False Imprisonment, Assault, Self-Defence
- · Criminal Law — Voluntary Manslaughter — Loss of Control and Diminished Responsibility
- · Criminal Law — Omissions Liability
- · Criminal Law — Theft, Burglary, Assault
Week 3
9 Sept – 15 Sept
- · Criminal Law — Intoxication — Involuntary
- · Tort Law — Nuisance
- · Tort Law — Psychiatric Harm
- · Tort Law — Economic Loss
- · Tort Law — Employer's Liability
Week 4
16 Sept – 22 Sept
- · Tort Law — False Imprisonment
- · Tort Law — Misuse of Private Information
- · Tort Law — Occupiers' Liability
- · Tort Law — Vicarious Liability
- · Tort Law — Negligence — Causation
Week 5
23 Sept – 29 Sept
- · Tort Law — Negligence — Duty of Care
- · Tort Law — Negligence — Breach of Duty
- · Equity & Trusts — Breach of Trust
- · Equity & Trusts — Certainty of Objects
- · Equity & Trusts — Charitable Trusts
Week 6
30 Sept – 6 Oct
- · Equity & Trusts — Fiduciary Duties
- · Equity & Trusts — Secret Trusts
- · Equity & Trusts — Purpose Trusts
- · Equity & Trusts — Resulting Trusts
Revision 1
21 Sept – 28 Sept
- · Full flashcard review — all modules
- · Attack plans timed run-through
- · Examiner insights re-read
Revision 2
28 Sept – 5 Oct
- · One timed past paper per module
- · Key case list memory check
- · Rest & exam-day preparation
Topic Predictor + Examiner Insights
Know what tends to come up — and what examiners reward.
From frequency analysis of 223 past-paper questions (2022–2026).
Equity & Trusts — likelihood
Examiner insights
⚠️ Common Mistake · Three Certainties
Almost every candidate addressed certainty of intention correctly, but a very large number then failed on certainty of objects — asking only whether the class was ascertainable, not whether the individual beneficial interests within it were.
🏆 Distinction Tip · Certainty of Subject Matter
Essays confined to describing Re London Wine and Hunter v Moss got Merit at best. Distinction scripts engaged with the tension: why uphold the trust in Hunter (fungible shares) but not Re London Wine (physical bottles) — and is that principled?
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