The “complete list” used to be the same for both discretionary and fixed trusts, but this became quite troublesome for the discretionary trusts, because of the number of prospective beneficiaries, compared to that of a fixed trust. Therefore, the new test of “is or is not” was introduced. This new test required that any potential beneficiaries must show that they fit within the description of the objects. This is much clearer than the “complete list...
The “complete list” used to be the same for both discretionary and fixed trusts, but this became quite troublesome for the discretionary trusts, because of the number of prospective beneficiaries, compared to that of a fixed trust. Therefore, the new test of “is or is not” was introduced. This new test required that any potential beneficiaries must show that they fit within the description of the objects. This is much clearer than the “complete list test”, because if an individual is unable to provide evidence that they could be a potential beneficiary, the trust will not be made null and void because it does not meet the uncertainty test, it simply states that the individual themselves does not satisfy the test and is therefore not entitled to the property within the trust. If it can be shown that there is no certainty of objects, then the trustee can hold the wine collection on trust for the settlor. This is called a resulting trust. The settler can get the legal title back and then create another trust that is valid and legal. So in clause 4, it stated absolutely who gets what, in line with the certainty of intent and certainty of objects.
