After Kemp v Kemp, the court would not exercise discretion to distribute property unequally. Now, equity is equality.
McPhail v Doulton changed the test of certainty that applied to the objects of discretionary trusts.
Re Gestetner Settlement - a complete list is not needed in power of appointment. Thus was born the 'is or is not' test.
IRC v Broadway Cottages Trust - whether 'is or is not' test could be applied to discretionary trusts
argument for complete list test:
- if no complete list, t'ee cannot satisfy the duty - choosing the right b1b2 out of the whole set
- court unable to deal with failure
argument for is or is not test:
???
McPhail v Doulton - 3:2, held: 'is or is not' test was appropriate for discretionary trusts as well
Wilberforce: equal distribution is not possible, and is the last thing the settlor ever intended.
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